The supermarket company had claimed that the leaflet was not
advertising but public relations material designed to inform the
public about its proposed shop. The company said that it was only
responding to what it said were demands by the planning process
that they inform local people about progress.
"Tesco said it was therefore common for developers to organise
public exhibitions and produce literature to inform communities
about their proposals and encourage public participation," said the
ASA in its ruling.
The ASA disagreed, though, and said that the material, which
listed many supposed benefits of the shop's existence, should be
regulated under the CAP Code like any other advert.
"The ASA noted Tesco's views with regard to the applicability of
the CAP Code to the circular. We considered that the circular
sought to affect readers' perception of the benefits of a new store
and sought to convince them not to object to the planning
proposals. We concluded that it was subject to the Code," said the
ruling.
Iain
Connor of Pinsent Masons, the law firm behind OUT-LAW.COM, said
that the case illustrated how careful companies have to be when
publishing material.
"Clearly Tesco wanted to ensure that its potential customers
supported the proposed new supermarket but in providing information
about the proposal the ASA found that Tesco was really just
advertising," he said. "This shows that it's a very fine line
between information and advertising especially in such a
contentious area as planning applications."
The ASA investigated claims that material in the leaflets was
inaccurate and upheld some of them. Its claim that there was a need
and demand for a new food shop in the Manningtree area was found to
be misleading.
"Readers were likely to infer from the claim that local
residents had been surveyed and the majority had indicated that
they wanted and needed a new food store," said the ASA's ruling.
"We noted only 8.6% of respondents to the telephone survey believed
a new supermarket would be useful. We considered Tesco had failed
to substantiate that there was a need and demand for a new food
store to serve the Manningtree/Lawford and Mistley area and
concluded that the claim was misleading."
The ASA also found fault with claims made by Tesco about the
reductions in travel distance resulting from the new shop and the
associated environmental benefits.
"We noted the circular inaccurately quoted the resulting CO2
saving as 1.6 million tonnes instead of 1.6 million kilograms or
1,600 tonnes, which we understood arose as a result of human
error," it said. "We considered that readers were likely to
interpret the claim as a factual statement capable of objective
substantiation. We understood, however, that it was based on
estimates. We considered that the circular should have made
that clear and concluded that the claim was misleading."
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