Information leaflets were advertising and can be regulated, says ad watchdog

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."