Advertisment
Advertising on Hidden Hearing’s and a third party website referred to the following:
“At Hidden Hearing, we offer superior hearing aids from the leading brands such as Brand 1 and Brand 2.”
“Hidden Hearing is Ireland’s leading provider of hearing healthcare with a national network of over 82 centres and clinics…”
“…We are the leading private provider of hearing care solutions for adults in Ireland…”
Complaint
Issue 1 – Superior hearing aids
Specsavers challenged the claim that Hidden Hearing offered superior hearing aids from leading Brands 1 and 2. They considered that substantiation had not been provided to support the claim which they considered to constitute an implied comparative claim. They said it would be impossible for consumers to make an informed choice as to whether the hearing aids being offered were in fact ‘superior’ and without qualification the claim had the potential to mislead.
Issue 2 – Leading provider
Specsavers challenged the claim that Hidden Hearing was Ireland’s “leading” provider of hearing healthcare/healthcare solutions for adults in Ireland. They said that substantiation had not been provided to substantiate such claims. They said they considered a claim such as “leading” to be a comparative claim and to be one that would require substantiation. Unless substantiation was available, Specsavers considered that the claim had the potential to mislead consumers.
Response
Issue 1 – Superior hearing aids
The advertisers considered that there were just two possible ‘objective understandings’ that a consumer could take from the statement that they offered superior hearing aids from leading brands such as Brand 1 and Brand 2 and they were as follows:
a. A consumer could objectively believe that what they were saying was that they offered superior hearing aids within the Brand 1 and Brand 2 ranges of hearing aids, which they said they did. They said they would argue that this was the most reasonable and objective interpretation of this statement.
b. In the alternative, however, a consumer could, they said, objectively believe that Brand 1 and Brand 2 offered superior hearing aids to other brands. They submitted evidence to substantiate this claim as follows:
i) a survey done for Brand 1 involving over 500 hearing specialists in the USA, which was published in ‘The Hearing Review’, stated that the Brand outscored all other brands and ranked Number 1 when compared to other hearing manufacturers in relation to the all-important sound quality, ease of use, and aesthetics. They outlined the following:
ii) UBS evidence lab (1) extract showing Brand 1 hearing aids superior sound quality, etc.
iii) The advertisers provided 2 links below to other awards for their range of hearing aids:
https://www.oticon.com/inside-oticon/news/news/2019/nov-11-ces-2020-awards
https://www.hearingreview.com/inside-hearing/events/ces
The advertisers said that they had not claimed to be superior and that the word ‘superior’ in the context in which it was used could be substantiated.
Issue 2 – Leading provider
i) The advertisers said that they were the largest single legal entity in Ireland providing hearing care solutions, they were one limited liability company, while their nearest competitors, namely Specsavers was made up of 81 separate legal entities, not all of which offered hearing care solutions.
ii) They had 80 locations nationwide offering hearing care solutions, while 54 Specsavers outlets offered hearing care solutions. They believed that this confirmed that they had the largest share of the market by far.
iii)) Finally, they said they had the full-time equivalent (FTE) of 57 Audiologists as opposed to the 39 Audiologists that worked across all Specsavers’s individual franchise network.
They believed, therefore, that there was ample evidence to show that they were the leading private provider of hearing care solutions for adults in Ireland and asserted that they had complied fully with the Code.
The advertisers said that it was important to point out that the Health Service Executive (HSE) was the leading provider of hearing healthcare in Ireland and when they made their claims, they had their competitors in mind and not a state body. They accepted that this was an error on their part, and they would not use this phrase going forward and would instead refer to “Hidden Hearing, Ireland’s leading provider of private hearing healthcare”.
(1) UBS Evidence Lab is a sell-side team of experts that work across 55+ specialized areas creating insight-ready datasets. The experts turn data into evidence by applying a combination of tools and techniques to harvest, cleanse, and connect billions of data items each month.
Source: UBS.com
FURTHER INFORMATION:
The Executive asked Specsavers for their observations on the advertisers’ response and they replied as follows:
Issue 1- Superior hearing aids
Specsavers said they did not accept Hidden Hearing’s position that there were two possible interpretations of the claim that they offered “superior hearing aids from the leading Brands 1 and 2…” The only reasonable and objective interpretation of this statement, they said, was that Hidden Hearing was purporting to offer hearing aids which were superior to those offered by their competitors. They reiterated that this claim constituted both a superiority claim, and an implied comparative advertisement claim and that it had not been substantiated. In relation to the surveys referenced by the advertisers, they made the following observations:
a) Brand 1 hearing aids: the survey provided by Hidden Hearing was, they said, published almost four years previously. It related to the US market and had not featured all of the hearing aid makes offered for sale in the Irish market. For example, they said, Specsavers Advance hearing aids, which were not offered for sale in the Unites States, were not considered as part of the survey. They said the fact that certain Brand 1 models had received Innovation Awards from the Consumer Technology Association in 2019 and 2021 was not adequate substantiation for the claim. They said these awards related to specific technological innovations in a specific product and did not substantiate a wider claim of superiority across the entire brand. They pointed out that other hearing aid makes, and models had received similar innovation awards from different organisations in the same year – e.g., the Phonak Marvel, which was offered for sale by Specsavers, was the recipient of the Innovation Award from the International Business Awards in 2019.
b) Brand 2 hearing aids: Specsavers said that the only substantiation put forward for the claim that Brand 2 were “superior hearing aids” were two blog posts published in June 2019 and in March 2018. Leaving aside the age of these blogs they made the following observations:
They considered that the posts had neither contained any objective analysis of the range of hearing aid makes and models available in the Irish market. Rather, they had represented the views of the authors based on their experience, or that of their customers following use of Brand 2 hearing aid models. They said they considered that testimonial evidence was insufficient to substantiate the advertisers’ superiority claim. They made specific reference to Section 4.17 of the ASAI Code which states that: “testimonials do not constitute substantiation and the opinions expressed in them should be supported where necessary, with independent evidence of their accuracy…” As no such independent evidence was contained in the blog posts or otherwise provided, they said that the claim had not been substantiated.
Issue 2 – Leading provider
Specsavers considered that the substantiation provided by Hidden Hearing for this claim was inadequate as consumers were likely to understand a ‘”leading” claim in the context of “hearing care solutions” as relating to the range of services and products on offer. They believed the substantiation provided focused exclusively on the size of Hidden Hearing’s Irish operation (i.e., the number of stores and audiologists on staff). They did not believe this was sufficient to support the comparative claim made.
To substantiate this claim, Specsavers considered that the advertisers should have carried out a broader comparison of its “hearing care solutions” against that of its competitors in the Irish market, to include for example the audiology testing capabilities, hearing aid technology, price range etc. They said that as no such comparative analysis appears to have been undertaken the advertising was misleading.
While noting Hidden Hearing’s acceptance that the HSE was the leading provider of “hearing healthcare” in Ireland on the basis that they were the largest such provider. Specsavers considered that this was not the only aspect of the “leading” claim which had the potential to mislead Irish consumers. Like their position previously outlined, they considered that consumers were likely to understand a “leading” claim in the context of “hearing healthcare” as relating more broadly to the range of services and products on offer. Based on the substantiation provided, they said, there appears to be no basis upon which the advertisers could sustain this claim as the required comparative analysis had not been carried out.
In response to Specsavers further observations, the advertisers provided additional documentary evidence which they considered to support their claims. They provided Competitor Benchmark Whitepapers Part 1 (2) and Part 2 (3), and a peer reviewed article entitled “Creating clarity in noisy environments by using deep learning in hearing aids (4)”.
They said that it did not stand up to scrutiny that even though they had the largest market share, the largest number of stores and the largest number of audiologists in Ireland, they could not claim to be the leading supplier.
(2) https://wdh01.azureedge.net/-/media/oticon/main/pdf/master/whitepaper/72002-uk-wp-oticon-more-competitive-benchmark–part-1-technical-evidence.pdf?la=en&rev=6E9D&hash=025748A827960F28914C46A0169719DA
(3) https://wdh02.azureedge.net/-/media/oticon-us/main/download-center—myoticon—product-literature/whitepapers/15555-0041—oticon-more-competitive-benchmark-whitepaper—part-2.pdf
(4) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8463126/
Conclusion
The Complaints Committee considered the detail of the complaint and the advertisers’ response.”
Issue 1 – Superior hearing aids – Upheld
The Complaints Committee considered the advertising claim “we offer superior hearing aids from the leading brands such as Brand 1 and Brand 2” could be interpreted in a number of ways, that the hearings aids were superior to other hearing aids in the market or that they were superior hearing aids within the brands referenced. They noted the Code provision that comparisons can be explicit or implied, can relate to an advertiser’s own products or those of their competitors; marketing communications that do not identify a specific competitor can be considered to contain an implicit comparative claim, as a comparison could be made with all competition within an industry, for example, unqualified superlative claims (S 4.31).
In this case, the Committee considered that the advertising contained an implicit claim of superiority against the complete hearing aid market.
They noted that the substantiation submitted did not relate to the Irish market and that in relation to one brand, was of a testimonial nature rather than substantiation.
As the claims made in the advertisement had not related to the Irish market, the Committee concluded that it had the potential to mislead consumers and to be in breach of Sections 4.1, 4.4, 4.9, 4.10 and 4.32 of the Code.
Issue 2 – Leading provider – Upheld
The Complaints Committee noted the commentary that the HSE was the leading provider of hearing healthcare in Ireland, and that account of this would be taken in future advertising, considering that the qualification was not included at the time the complaint was made, the advertised content was likely to mislead.
The Committee noted that the Code provides wording that implies superior or superlative status such as ‘leading’ should be capable of substantiation with market share data or similar proof (S 4.33).
The Committee considered that most consumers would interpret the word ‘leading’ in the context in which it was used in the advertising to relate to a number of factors to include the range and quality of products and services provided in addition to store locations and specialists available. Accordingly, without adequate substantiation across a broader offering available for the Irish market, the advertising had the potential to mislead and was held to be in breach of Sections 4.1, 4.4, 4.9, 4.10, 4.32 and 4.33 of the Code.
ACTION REQUIRED:
The advertising should not be used in the same format again.
