DECISION by FEP1b6i

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									             ADVERTISING STANDARDS COMPLAINTS BOARD
                                      PO Box 10-675 Wellington
                                       Telephone (04) 472-7852
                                       Facsimile (04) 471-1785
                                            Email asa@asa.co.nz
                                           Website www.asa.co.nz

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                                        DECISION

                                  Special Meeting 21 July 2005

                               Convened pursuant to Rule 3 of the

              Constitution of the Advertising Standards Complaints Board

Complaint 05/210

AWAP 05/009

               Complainant: Winstone Wallboards Limited
               Advertisement: James Hardie

Complaint: The James Hardie Villaboard television advertisement (Key No: JH 60 511)
showed a hole in a bathroom wall and contained the following voice over:

―Today on Showhomes we’re looking at interior lining solutions for bathrooms and wet
areas.

Here Villaboard is being used to prevent water damage.

This is a very real problem.

In this bathroom where plasterboard has been used it’s rotten through due to high moisture
levels.

The benefit of using Villaboard is the rigidity of fibre cement board.

Impact resistant, resistance to rot and decay; Villaboard Lining is a high performance impact
and water resistant product, tough enough to be used in hospitals and suitable for all
household wet areas like bathrooms and laundries.
….

Villaboard in all wet areas definitely, I wouldn’t use anything else.….‖


The voiceover was accompanied by a visual presentation showing a builder installing
Villaboard in a house under construction, and images of a hole in a plasterboard bathroom
wall.

The print advertisement published in Architecture New Zealand contained an image labeled:
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ROT IN PLASTERBOARD – WATER DAMAGE CAN’T HAVE THIS HAPPEN!!

The accompanying text said:

―2.1 WET AREA LININGS
All wet area linings must be James Hardie VILLABORAD LINING. Resistant to permanent
damage from water, rot and decay, its durability and structural bracing is imperative. No
alternatives considered.‖

The tagline said: ―SPECIFY VILLABOARD® LINING‖.


The Complainant, Winstone Wallboards Limited, said:

―We wish to lodge a formal complaint against a television commercial currently running by
James Hardie. It has appeared most recently on TV One on 15th June 2005 at 21.18pm in the
programme William and Mary. A copy of the advertisement is enclosed.

We also request an AWAP be arranged and ask that you invoice us for the required amount.

Television commercial

The television commercial openly denigrates our product GIB® plasterboard by saying:

"In this bathroom where plasterboard has been used it's rotten through due to high
moisture content"

Whilst GIB® is not referred to in the television commercial, Winstone Wallboards has 95%
market share of the plasterboard market in New Zealand and all consumers, builders and
architects are aware that plasterboard is made by GIB®. The level of our market share and
brand awareness means that any generic denigration of plasterboard essentially equates to
denigration of our products. Therefore, it is clear that consumers would think the damaged
product in the advertisement to be our product. There is ample precedent in cases previously
decided by the ASCB where a brand has not been named that the Comparative Code still
applies. We refer to Decisions 91/28, 92/8 and in particular 93/137 and 95/82 both of which
have many similarities to our complaint. These Decisions support our argument that in this
case our brand GIB® would be clearly identifiable as referred to in the commercial.
Additionally, it is misleading as in 01/191 where the facts are remarkably similar.

Winstone Wallboards have been manufacturing a range of plasterboards under the GIB®
brand for over 75 years. It has developed a range of boards that are specifically designed for
different uses some which are required by the Building Code e.g. Bracing, Noise Control,
Fire Rated Systems, Tough Zones, Wet areas.

The James Hardie advertisement refers to "plasterboard" as not being suitable for wet areas.
This is totally misleading and denigrating enough for any reasonable viewer to now question
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whether any type of plasterboard is suitable for use in wet areas. This clearly amounts to
scare tactics by James Hardie and is factually incorrect

Winstone Wallboards does not recommend the use of GIB® standard plasterboard in wet
areas. Instead, it has developed GIB Aqualine® plasterboard, which is a plasterboard
specifically designed for use in wet areas (such as bathrooms, kitchens and laundries) with a
special water resistant core containing wax polymers.

GIB Aqualine® plasterboard has proven itself as an excellent wet area and tile substrate
having been installed in over 300,000 wet area rooms in New Zealand in the last ten years.

GIB Aqualine® plasterboard installed correctly, as part of a GIB Aqualine® Wet Area
Systems has a 15 years serviceable life for use in wet areas directly exposed to liquid water
e.g. showers, showers over baths and splash backs. It has a 50 year serviceable life when used
as a general wet area lining. This has been independently verified by BRANZ (see GIB
Aqualine® Wet Area Systems BRANZ Appraisal Certificate NO. 427 (2002)).

Winstone Wallboards stands behind the performance of its products and systems. We are not
aware of a single instance in which damage of the kind depicted in the James Hardie
commercial has occurred to plasterboard which has been properly installed in accordance
with our recommendations and instructions.

The advertisement presents a systemic watertightness problem as if it is a plasterboard
problem. By using standard wallboard as the comparison instead of GIB Aqualine®' the
comparison is unfair and chosen in such a way as to confer an artificial advantage.
Consequently, the advertisement is also misleading.

If wet area plasterboard gets to the state referred to in the James Hardie commercial, it has
been exposed to extensive and prolonged water exposure. With this level of water exposure
there will be much more significant damage to deal with, such as to the structural framing
and flooring. No wet area lining product (i.e. neither GIB Aqualine® nor Villaboard) can
protect against that sort of damage. The problem depicted is not caused by the use of
plasterboard, it is caused by a leaky system. James Hardie's advertising is also misleading
because it portrays that Villaboard will provide full protection with this extensive and
prolonged water exposure, yet it will not.

Magazine Advertising and promotional literature

As part of this complaint, we also wish to include magazine advertising and promotional
literature which James Hardie is running in Architecture New Zealand. A copy is enclosed.
The same kind of message we have complained about in the television commercial also
appears in their print advertising. The magazine advertisement is misleading for the same
reasons as the television commercial.

We are of the firm belief that the television commercial and print advertising are in breach of
the Advertising Codes of Practice and refer you specifically to:
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   a) Advertising Code of Ethics

       Basic Principle 1. All advertisements must comply with the laws of New Zealand.
       These advertisements are misleading and deceptive, and accordingly breach s.9 of the
       Fair Trading Act

       2. Truthful presentation
       8. Denigration

   b) Code for Comparative Advertising

       Guidelines: (a) (b) (c) (d) (f)

For your information, TVNZ has withdrawn approval to run the commercial until this matter
has been resolved. We therefore await your response on when an AWAP can be arranged.‖


Procedure

The Panel:

The Chairman, Mr R. Thompson, ruled to deal with the matter with the attendance of parties
pursuant to Rule 3 of the Complaints Procedures of the Advertising Standards Complaints
Board and appointed the following co-panelists: Mr E. Abernethy (Chairman of the Appeal
Board) and Mr B. Moffat.

The Complainant, Winstone Wallboards Ltd was represented by Mr. T. Smith – Marketing
Manager – Residential, and Mr. K. Sceats – Senior Technical Executive.

The Advertiser, James Hardie, was represented by Mr. R. Kidd – General Manager and Mr.
G. Jarvie – Legal Counsel.


The Chairman ruled that the following provisions were relevant:

Code of Ethics:

Basic Principle 1: All advertisements must comply with the laws of New Zealand.

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).
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Rule 8: Denigration - Advertisements should not denigrate identifiable products or
competitors.


Code for Comparative Advertising

Guidelines:

   (a) Comparative advertising should be factual and informative and should offer a product
       or service on its positive merits. The intent and connotation of the advertisement
       should be to inform and not to discredit, disparage or attack competitors, competing
       products or services directly or by implication.

   (b) Comparative claims should be unambiguous and clearly understandable so that there
       is no likelihood of the consumer being misled as a result of the comparison.

   (c) Where an advertisement makes a comparison, whether explicitly or implicitly, it
       should be clear with what the comparison is being made, i.e. price to price, dimension
       to dimension, feature to feature.

   (d) The competition should be fairly and properly identified but never in a manner or tone
       of voice that degrades the competitive product or service.

   (f) The subject matter of a comparison should not be chosen in such a way as to confer
       an artificial advantage upon the advertiser or so as to suggest that a better bargain is
       offered than is actually the case.



The Advertiser, James Hardie, said:

―I refer to your letter of 29 June. James Hardie agrees to participate in the proposed
complaint adjudication.

The Television Advertisement

The complaint raises several grounds. I shall address these in turn.

Enclosed in Annexure 1 is a transcript of the television advertisement (the ―Transcript‖).

Denigration of GIB Plasterboard

The complainant claims that "the television commercial openly denigrates our GIB
plasterboard". This claim is not correct. The advertisement:
     makes no reference to "GIB", or anything similar;
     makes no reference to "Winstone Wallboards Ltd", or anything similar;
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      makes no reference to any of the several brand names or trademarks that the
       complainant uses in relation to its suite of products; and
      contains no representation of any design, logo, or product get-up associated with, or
       used by, the complainant in its business.

"GIB" is, I understand, one of several trademarks that the complainant uses in conjunction
with its suite of products. Given that our advertisement makes no reference whatsoever
(neither direct, nor implied) to "GIB plasterboard", the complainant's claim that "the
television commercial openly denigrates our GIB plasterboard" is completely unsustainable
and without foundation or support. As there is no reference to "GIB", viewers of the
advertisement would have no grounds for associating our references to "plasterboard" to the
particular suite of products sold by the complainant.

The advertisement simply refers to "plasterboard". This is a generic, and widely-known term
for a common building material. The term is widely understood by the community to be a
gypsum-based or "plaster-based" flat sheet used in differing building applications. Broader
definitions of this term are given by Environmental Choice NZ (Annexure 2).

This reference shows that plasterboard is a broadly-defined and generic product.
"Plasterboard" is a generic term for a building-board that has gypsum-based (i.e. plaster)
constituent elements.

Plasterboard is a generic product made by hundreds of manufacturers around the world. It is
frequently traded, and imports are often sold in New Zealand. Annexure 3 is the Final Report
of the Ministry of Commerce on a complaint lodged by the complainant that foreign
manufacturers were dumping plasterboard in the New Zealand market. This Report amply
demonstrates that "plasterboard" is a generic term for a generic product. The Report makes
repeated references to "standard plasterboard", no doubt, in part, to distinguish this generic
product from other more unique, differentiated or value-added versions of the standard
product. For example:
     paragraph 1.3.1 of the Report makes it clear that the basis for the anti-dumping
        complaint by the complainant was that "standard plasterboard" was being imported
        into New Zealand;
     paragraph 1.3.2 of the Report demonstrates that there are clear definitions for this
        standard product which include:
                     articles of plaster or of compositions based on plaster;
                     boards, sheets, panels, tiles and similar articles, not ornamented; and
                     faced or reinforced with paper or paperboard only; and
      paragraph 2.1.3 of the Report states that:
        "The manufacturing process used in the production of [standard] plasterboard is a
        relatively standard process. The primary materials used in the manufacturing process
        are gypsum and paper. There may be minor differences in thickness, surface texture
        or colour between the domestically produced plasterboard and the imported product.
        Such differences are not considered to be significant."
     and paragraph 2.1.4 of the Report states that:
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       ―…the plasterboard produced by Winstone, while not alike in all respects, has
       characteristics closely resembling the imported plasterboard, and is therefore like
       goods to the subject goods.‖

This amply demonstrates that "plasterboard" or "standard plasterboard" is a generic product
description. Winstone was the complainant in this anti-dumping action. Thus it was
Winstone's case, put to the Ministry of Commerce, that standard plasterboard was a generic
product, made by it and any number of other manufacturers.

Winstone Wallboards' Market Share

The complainant argues that, because "Winstone Wallboards has 95% market share of the
plasterboard market in New Zealand and all consumers, builders and architects are aware that
plasterboard is made by GIB", then our reference to "plasterboard" must necessarily be seen
as a reference to the complainant's "GIB plasterboard".

This claim is unsustainable on several grounds.

Firstly, we do not agree that the complainant has 95% market share. We understand that the
complainant is the only local manufacturer and that it has a substantial market share. But it is
also the case that imported plasterboard products are distributed and sold in the New Zealand
market all of the time. A quick phone-around of a handful of hardware stores in Auckland
recently demonstrated that different imported plasterboards are currently being sold,
including:
     products from BGC (an Australian manufacturer);
     products from CSR (an Australian manufacturer);
     products from British Plasterboard — distributed in New Zealand by a local company,
        Building Materials (N.Z.) Ltd (see enclosed extract from their website); and
     a product marketed under the "Elephant Board" brand (which we understand to be
        from Asia).

Thus at any one time there are several generic plasterboards being sold in the New Zealand
market.

Secondly, the claim that "all consumers, builders and architects are aware that plasterboard is
made by GIB", is ridiculous. The complainant has provided no evidence to support its
contention that "all consumers" associate references to "plasterboard" with references to its
"GIB" brand. I consider it to be much more likely that many consumers would be completely
unaware of the complainant's GIB brand.

The complainant has also provided no evidence to support its contention as to the knowledge
of "all ... builders and architects". However, we are prepared to accept that many builders and
architects who work with applications or building systems in which plasterboard can be used
(eg certain types of internal linings in residential and some commercial construction), would
be aware of the complainant and its suite of products. However, this group would be equally
aware that:
     there is generic, standard plasterboard (not all of which is made by the complainant);
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      the complainant has a suite of products with different applications; and
      the complainant markets its different products from its product range under a variety
       of brand names and trademarks so as to distinguish its specialist, differentiated
       "plasterboards" from standard, generic plasterboard.

So this group would be well aware that there is both standard, generic plasterboard and other
types of "specialist plasterboard". Someone with this level of knowledge would also
understand that our references in our advertisement were to standard, generic plasterboard.

Thus the complainant has no grounds for, and has provided no substantiation for, its claim
that the viewers of our advertisement would consider our references to "plasterboard" to be
references to "GIB plasterboard".

The Difference Between "Plasterboard" and "GIB Aqualine Plasterboard"

On page 1 of its complaint letter, the complainant claims that it has 95% of the "plasterboard"
market and that thus a reference to "plasterboard" must, by implication, be a reference to it.
However, on page 2 of its letter the complainant states that:
    it has "been manufacturing a range of plasterboards under the GIB brand";
    "it has developed a range of boards that are specifically designed for different
       uses";
    "Winstone Wallboards does not recommend the use of GIB standard plasterboard
       in wet areas. Instead, it has developed GIB Aqualine plasterboard, which is a
       plasterboard specifically designed for use in wet areas ... with a special water
       resistant core containing wax polymers."

These statements demonstrate the inconsistency of the complainant's argument:
    the complainant itself acknowledges that there is "standard plasterboard" and that it
       has its "specifically designed" "GIB Aqualine plasterboard" for "wet area"
       applications; and
    the complainant itself acknowledges that "standard plasterboard" is "not
       recommended for use" in wet areas.

Nothing more need be said to dismiss the complainant's complaint in this case. Our
advertisement makes the point that standard, generic plasterboard is not the most suitable
product for the wet areas of a bathroom because of the extent to which this product can be
damaged by moisture. The complainant itself acknowledges this. The complainant has
developed a specifically designed, specialist product "with a special water resistant core
containing wax polymers" for this type of use. No-one viewing our advertisement would
construe it to be a reference to specifically designed, GIB Aqualine plasterboard "with a
special water resistant core containing wax polymers".

The complainant understates the position when it says it does not recommend the use of
standard plasterboard in wet areas. Annexure 4 is a copy a "GIB Toughrock Rocklinings"
brochure published by the complainant. This brochure commences "Superior toughness,
plasterboard convenience". Thus I would presume that the complainant, and professionals in
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the building trade, would classify this product as one of many in the plasterboard group. This
brochure contains statements including:
     "GIB Toughrock is suitable for use in dry areas. Also suitable in service rooms such
        as kitchens, laundries and bathrooms provided regions exposed to frequent wetting or
        splashing (such as tub surrounds and shower walls etc) are avoided."
     "Protect GIB Toughrock from water damage during transportation to ensure dry
        delivery to site."
     "Maintain ventilation when moisture is introduced to the jobsite, such as through wet
        cement, or drying paint."
     "Treat water infiltration from any source with urgency. Stop leaks as soon as they
        appear."

These statements show how susceptible this form of plasterboard is to moisture damage (even
drying paint seems to carry a level of risk). With this plasterboard, water infiltration from any
source must be treated "with urgency'.

Annexure 5 is a draft, advance copy of the August 2005 "Trade Matters" brochure to be
published by the Carters retailing group. Page 6 contains an advertisement for GIB Aqualine
which we presume has been prepared by, or with the consent and cooperation of, the
complainant. This advertisement distinguishes GIB Aqualine from other (more standard)
plasterboard. It makes the point that:
     the GIB Aqualine product has "special plaster core containing water resistant wax
        polymers";
     the GIB Aqualine product has "fibreglass and other additives" (that standard
        plasterboard does not have); and
     GIB Aqualine is different from and is superior to GIB Standard Plasterboard because
        when these products "are soaked in ... water ... the core of the standard plasterboard
        has absorbed the water, while the core of GIB Aqualine is relatively unaffected".

Thus here is yet another statement, from the complainant, that makes the same point as that in
our advertisement - standard plasterboard carries risk of damage or deformation from
moisture and thus is not best-suited for use in wet areas.

Is A Comment On Standard Plasterboard a Reference To "GIB Aqualine Plasterboard"?

Our advertisement makes the statement that "this bathroom, where plasterboard has been
used, is rotten through due to high moisture levels". The complainant portrays this statement
as a commentary on GIB Aqualine product, rather than on standard plasterboard, as if these
are identical or substantially similar products. As well as the specific design and composition
differences discussed above, there is another, very significant difference between these two
products – price. Standard plasterboard sells for merchant prices of around $18-$22 for a
2400x1200mm sheet. The GIB Aqualine product sells at around $35-$49, depending on sheet
thickness.

Here is the substance of the issue. There is always a segment of builders, subcontractors or
installers who are price-sensitive. A portion of these do install standard plasterboard (which
they can obtain for around $18-$25) in wet areas rather than using more expensive, but far
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better-performing, products which are specifically designed for these applications. With these
better-suited products being two or more times more expensive than standard plasterboard,
there is an incentive for the cost-conscious, or ill-informed, installer to purchase and use the
standard product. Many jobsites exist where this has been done. The plasterboard actually
depicted in our advertisement is from one of these jobsites.

Thus it is completely appropriate for our advertisement to advise the general consumer of the
risk involved in the use of standard plasterboard in these wet area applications, so that the
consumer can supervise their builder and installer and insist that they use a better-designed
product that has far superior performance properties in wet areas.

Our Villaboard Lining is such a product. Our product is resistant to moisture damage. Our
product has satisfied several standard tests such as the "Water Permeability" test, the "Warm
Water" test, the "Heat-Rain" test and the "Soak-Dry" test (see Annexure 6, which is the
Australian and New Zealand Standard which specifies and describes these tests). Our
compliance with this Standard substantiates our claim that our product has superior moisture-
management properties.

Denigration

Rule 8 of the Advertising Code of Ethics states that "advertisements should not denigrate
identifiable products or competitors".

I have already addressed the issue that our advertisement refers to generic plasterboard and
does not make any reference, direct or implied, to the complainant, any one of its products, or
its suite of products in general. Thus there is no "identifiable products or competitors".

Additionally, there is no "denigration". "Denigration" involves an element of disparagement,
abuse, ridicule or defamation. It is appropriate and reasonable for the Code to proscribe such
activities. However, the Code does not, and should not, stand in the way of businesses
providing accurate comparative information to consumers regarding the appropriateness of
the use of different building materials, products or systems in building applications.
Consumers need information on which to make a choice.

It is a fact that some builders and installers use standard plasterboard in applications for
which that product is not suited (or is not ideally suited). It is a fact that our Villaboard
Lining has superior performance characteristics to standard plasterboard in applications such
as lining wet areas like bathrooms. Standard plasterboard is a gypsum-based plaster product,
often faced with a paper lining. If this product is used as a substrate to construct a bathroom
wall, the bathroom tiles need to be affixed to this product with suitable adhesive. As the
complainant acknowledges in its own advertising, the core of standard plasterboard absorbs
water if the product gets wet. Several consequences can arise from this:
     the product will lose its overall strength;
     the product may rot or otherwise deteriorate;
     the product may swell or otherwise deform; and
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      the paper facing on the product may lose strength and consistency, thereby
       undermining the structure to which the tiles are adhered, causing the tiles to shift, fall-
       off or otherwise require remediation..

Our Villaboard Lining does not have these characteristics. It is resistant to moisture damage
(as demonstrated by the aforementioned "Water Permeability'', "Warm Water", "Heat-Rain"
and "Soak-Dry'' tests). If our product gets wet, it can simply dry out and still have the same
strength, durability and capacity to form a sound bond with tile adhesives. Thus our product
offers an extra level of security to persons constructing bathrooms.

It is perfectly appropriate for us to point out the differences between the performance of our
product and that of other products which are sometimes used in the same application. A
statement of this kind does not amount to "denigration". There is no language in our
advertisement which could be characterised as derogatory, defamatory or denigratory
language. We simply state facts in unemotive language.

Basic Principle 1

In your letter you state that Code of Ethics – Basic Principle 1 may be relevant in this case.
This principle says that "all advertisements must comply with the laws of New Zealand". We
strongly deny that anything in our advertisement does not comply with the laws of New
Zealand.

The complainant has constructed an elaborate argument that our advertisement is in some
way misleading and thus is in breach of the Fair Trading Act. I have addressed the
complainant's arguments above and shown them to be without foundation. Our central
proposition is that standard, generic plasterboard is less suited for lining wet areas than our
Villaboard Lining because of the way it can be affected by moisture. The complainant's own
advertising, and indeed the complaint's letter of complaint, also makes this point with respect
to standard plasterboard. For example:
     we compare standard plasterboard to our Villaboard Lining and we say that
        Villaboard Lining is superior; whilst
     the complainant compares standard plasterboard to its GIB Aqualine product and says
        that GIB Aqualine is superior.

The complainant states that "the advertisement presents a systemic watertightness problem as
if it is a plasterboard problem. By using standard wallboard (sic) as the comparison instead of
GIB Aqualine the comparison is unfair and chosen in such a way as to confer an artificial
advantage. Consequently the advertisement is also misleading".

The complainant provides nothing to substantiate this argument. The reference to "a systemic
watertightness problem" (whatever that is supposed to mean) is made without any reference
to anything said or depicted in the advertisement. This appears to be pure conjecture on the
complainant's behalf. The simple fact is that the plasterboard depicted in the advertisement is
an actual, real example. This is a common occurrence in places where standard plasterboard
is used – New Zealanders renovating or repairing their bathrooms come across the same
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problems. It is not misleading to present these facts so that consumers can make a more
informed choice.

The complainant's claim that "by using standard wallboard (sic) as the comparison instead of
GIB Aqualine the comparison is unfair and chosen in such a way as to confer an artificial
advantage", and that this makes the advertisement misleading, is without foundation and is
based on a misrepresentation of the advertisement. This advertisement was not an
advertisement directed at "all forms of plasterboard, including the speciality, higher-priced
plasterboards". This advertisement was not directed at the complainant or any of its products,
in particular its GIB Aqualine product. This advertisement was directed at generic
plasterboard and was based on an actual example. In these circumstances there is no
foundation to the complainant's argument that the advertisement should have conducted a
comparison to their GIB Aqualine product. Thus there is no foundation to the argument that
the advertisement is misleading.

There are simply no grounds on which to maintain the argument that our advertisement is in
breach of any New Zealand law.

Code of Ethics – Rule 2

This rule requires that an advertisement should present a truthful presentation. As extensively
discussed above, that is exactly what this advertisement does. It presents truthful and accurate
information of an actual example – an example which can be found in bathrooms and wet
areas under repair every day.

Code of Ethics – Rule 8

This rule provides that an advertisement shall not denigrate identifiable products or
competitors. As extensively discussed above, no products or competitors are identified or
denigrated.

Code for Comparative Advertising – Guideline (a)

As discussed above, our advertisement does not attack or disparage competitors. However,
given that:
     numerous examples exist of corner-cutting builders or installers using cheap, generic
        plasterboard in wet area applications;
     if the consumer is not aware of this the consumer has no opportunity to insist to their
        installer that they use more robust products like our Villaboard Lining; and
     the consumer often bears the cost of this because the problems with the use of the
        cheaper materials often don't surface for several years, leaving the consumer with
        little practical remedy against the installer,
we believe that its perfectly appropriate to provide consumers with this kind of comparative
information. A comparison of the results of the performance of different products does not
amount to a discrediting or disparaging of the product that has less attractive performance
characteristics.
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Code for Comparative Advertising – Guideline (b)

There is nothing in our advertisement that is ambiguous or that would lead to consumers
being mislead. On the contrary, our advertisement provides consumers with information that
they need in order to make informed choices.

Code for Comparative Advertising – Guideline (c)

Our advertisement, to the extent that it makes a comparison, makes that comparison to
generic plasterboard. In this context this guideline is not relevant. Notwithstanding this, our
advertisement does fairly and completely discuss the relative performance characteristics of
the different products mentioned.

Code for Comparative Advertising – Guideline (d)

This guideline is of no relevance to an advertisement discussing a product as generic as
standard plasterboard.

Code for Comparative Advertising – Guideline (f)

This guideline states that:
       "The subject matter of a comparison should not be chosen in such a way as to confer
       an artificial advantage upon the advertiser or so as to suggest that a better bargain is
       offered than is actually the case."

We certainly have not breached this guideline. The subject matter of our advertisement is our
standard Villaboard Lining product. It is a standard fibre cement product that has proven
capabilities in its resistance to moisture damage and its general moisture-management
properties.

Fibre cement is made from sand, cement and cellulose fibres. This composition, along with
the manufacturing method, is what gives the product its excellent moisture performance
properties. Contrast our cement-based product to some plasterboards which, on the
complainant's own assessment, need to be protected from the effects of overly-moist drying
paint.

Thus none of the Code – principles, rules or guidelines – has been breached.

The Magazine Advertisement

The complainant also makes an allegation that an advertisement that is running in the
Architecture New Zealand magazine "is misleading for the same reasons as the television
commercial". The complainant provides no grounds to substantiate this allegation,
notwithstanding that the content of the television advertisement and the print advertisement
are dissimilar. Accordingly, there is no substantive complaint to respond to. However, I
would say that:
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      the print advertisement contains a generic reference to standard plasterboard and we
       stand by its contents as being fair and accurate; and
      this particular advertisement is being published in an architecture magazine and must
       be read in that context — the readers of that magazine will clearly understand the
       references being made, and would not be mislead.

Accordingly we deny that there has been any breach of the Advertising Code and we request
the Board to urgently schedule the proposed hearing so that we may dispose of this matter.‖


The Agency, Channel i said:

―We act as the advertising agency for James Hardie New Zealand and their communication
"TV Showhomes". TV Showhomes is a 60 second television format based on providing
viewers with information on building and design ideas.

TV Showhomes has been playing for nearly 4 years now and we have overseen the
production of more than 70 unique television commercials. This is the first time we are aware
of any complaint with regards to TV Showhomes being registered with the Advertising
Standards Complaint Board.

As you would be aware the commercial, key number JH/60/511, was approved by TVCab. In
our opinion it was approved with good reason. You should also be aware that Winstone
Wallboards made its first complaint to TVNZ who in turn made TV Cab aware of it. TV
Cab's position at that time did not changed despite pressure from Winstones on TVNZ to pull
the advertisement. To the best of my knowledge TV Cabs opinion has not changed.

We find it surprising GIB - Winstone Wallboards, believe the television viewer would
interpret the use of the word plasterboard as meaning GIB products. Winstone Wallboards do
not own the word plasterboard. We also question Winstone Wallboards assertion they own
95% of the market and would be interested in seeing proof of this. Our understanding is there
are many plasterboard products now imported into New Zealand like Elephant Board and of
course there is British Plasterboard which is established in the market place.

In fact we believe Winstone Wallboards complaint as such a broad interpretation, that we
would view this complaint as having no merit or foundation at all.

In our commercial we did nothing other than state fact. We show a plasterboard wall rotten
through. This depiction was accurate and truthful. We were also not comparative in our
advertising, a fact I am sure TVCab also took into account.

Winstone Wallboards also suggests it knows what caused the problem depicted in the TVC.
They have no way of knowing this nothing this and its comments around this are completely
subjective.
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This complaint comes down to one simple issue and that is whether plasterboard means GIB.
It doesn't and we, TVCab and most probably the television viewer would find it surprising if
the ASA Board found. this to be the case.‖


Television Commercial Approvals Bureau (TVCAB) said on behalf of the media:

―We have been asked to respond under Code of Ethics:
       Basic Principle 1 Advertisements must comply with the laws of NZ
       Rule 2 Truthful presentation
       Rule 8 Denigration
Code for Comparative Advertising:
       Guideline (a) factual and informative
       Guideline (b) unambiguous and clearly understandable
       Guideline (c) clear comparison
       Guideline (d) competition should be fairly and properly identified
       Guideline (f) comparison should not be chosen to confer artificial advantage to
       advertiser.

The complainant's argument would appear to be that their standard product GIB Board has
become the generic term for all plaster boards and therefore any reference to standard
plasterboard is a reference to all their specialized plasterboard products.
This is simply not the truth or the common practice.
The advertisement demonstrates the possible outcomes of using standard plaster board in a
wet area. The water gets through the plaster board and starts deterioration in the timber
framing behind. This is what happens when plaster board is used inappropriately in a wet
area. Even Winstone Wallboards do not recommend plasterboard in wet areas.

This advertisement is a not a comparative advertisement. It is demonstrating the potential
problems of using the WRONG product in a wet area. Standard plaster board is shown as
failing when used inappropriately. There is nothing wrong with that. It's no different to
showing a Mini trying to pull a 20 foot trailer boat out of the water on a steep ramp.
Winstone's may be correct in claiming most people think of plaster board as gib board. But it
is STANDARD plaster board they think of as gib — not Gibralta Specialty Boards or the
entire Gibralta Board range. Even a handyman recognizes the difference between gib board
(the generic standard plaster board term) and Gibraltar Board specialty products
To builders, architects and home handymen, Aqualine is a stand alone wet wall product. It
has no common connotations with standard plasterboard. It is thought of, spoken of, and
specified as Aqualine, or Villaboard, or Seratone, or Formica, or Elephant Board or any other
specialty product where it is appropriate to use a wet wall product.

This is not a comparative advertisement because it is not an apples with apples, like with like
situation. Plasterboard is an ideal product for some 90+% of the wall areas in an average
home, but, in that small percentage such as bathrooms and laundries it is not recommended,
and Villa Board is one that is. This casts no aspersions on Aqualine because Aqualine is not
gib board, even though it may be a Gibralta Board product. Builders and architects know this,
so do handymen and building supply retailers. The only ones who could possibly be confused
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are novice renovators. Then, as with a myriad of other building products and terms they are
quickly educated with their first contact with an expert, be it the builder, designer or building
supply store assistant.. The TVCAB does not believe this is a comparative advertisement, but
never the less it still meets the listed criteria for the complaint
             the advertisement is factual and informative
             what is stated is clear and unambiguous, in terms that an average person could
                easily understand, not in builder's jargon or architectese
             it is not a comparison but a presentation of options - 1/ inappropriate use of a
                product, and 2/ a recommended product
             the product (plaster board) is clearly identified, and equally clearly shown in a
                situation where it is incorrectly used. No different to a medicine ad -use as
                directed!
             The distinction between plaster board and Villaboard confers no artificial
                advantage on Villaboard. It is exactly the same as - "the right tools for the
                right job", "the right product for the right place". One product "plaster board" -
                does not fit all situations.

The above assertions also mean the advertisement meets the laws of NZ and Basic Principle 1
of the Code of Ethics, and it is a truthful presentation without exaggeration, misleading
representation or even hyperbole. Because there is no comparison there is also no denigration
so Rule 8 Code of Ethics is also met..

In approving this advertisement TVCB gave careful thought to the Comparative Advertising
Code, but felt that James Hardie had used the term plaster board correctly and fairly, showing
exactly why a general product did not always stand up in a specialized situation. And whilst
many viewers would see plaster board as synonymous with "gib" board it was quite different
from seeing it as the entire GIBRALTA Board range or Aqualine.

It is our belief the complaint should not be upheld.‖


AGM Publishing Limited, said on behalf of the media:

―For the record we confirm that we ran the advertisement in question in Architecture New
Zealand, which we have published bi-monthly since 1988.

In accepting the advertisement for publication we did not see the particular copy as giving
cause for a complaint. We did not regard the copy submitted by the advertiser in question
(James Hardie) as being in breach of the code.

We await the decision of the ASCB and will abide by the Board's ruling on this matter.

We confirm that we have received no other complaints directly to us on this particular
advertisement.

Please advise any further information that we can provide.‖
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Deliberation


The Panel identified the two advertisements subject to complaint, one being a James Hardie
television advertisement for Villaboard (Key No: JH 60/511) and the other a James Hardie
magazine advertisement published in Architecture New Zealand.
It acknowledged that the television advertisement was aimed both at the DIY or ―do it
yourself‖ consumer, and/or the consumer who would engage a builder to complete
renovations or a new home for them.

The magazine advertisement, which carried a similar message, was primarily aimed at
architects and designers.

The Panel noted the complainant, Winstone Wallboards Limited, argued that as their product
GIB Board had significant market share for plasterboard, any reference to plasterboard in the
James Hardie advertisement was likely to be a reference to GIB’s plasterboard products.

Accordingly, any denigration of plasterboard, was in the complainant’s view, denigration of
their products. The Panel acknowledged that it was not necessary for an advertiser to name a
competitor in the market place, as they would be identified in the consumer’s mind, by
implication, particularly in this instance where the complainant, Winstone Wallboards Ltd,
had a significant market share. This principle had been previously established in Complaints
Board Decision 93/137 – Monier Brickmakers v Gerrard Tuffcoat Roof Tiles.

Accordingly, the advertisement fell into the category of a comparative advertisement, as it
identified a competing product or service. As such the Panel said the advertisements were
required to comply with the Code for Comparative Advertising. The introduction to that Code
stated the need for such advertisements to not mislead the consumer about other products
directly or by implication, or unfairly attack or discredit other products directly or by
implication.

The task before the Panel was to determine whether the advertisements contained any
statement or visual presentation or created an overall impression which directly or by
implication or exaggerated claim, would be likely to mislead the consumer or exploit the
consumer’s lack of experience or knowledge (Code of Ethics –Rule 2).

Furthermore, the Panel was required to determine whether the advertisements denigrated
identifiable products or competitors (Code of Ethics – Rule 8).

The Panel noted the Complainant’s contention that the advertisements presented a systemic
watertightness problem as if it was a plasterboard problem, which was misleading.

Furthermore, the Complainant believed by using ―plasterboard‖ as the comparison instead of
GIB Aqualine®, the comparison was unfair and chosen in such a way as to confer an
artificial advantage.
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The Complainant said that, if wet area plasterboard got to the state referred to in the James
Hardie commercial, it would have been exposed to extensive and prolonged water exposure.
With this level of water exposure there would be much more significant damage to deal with,
such as to the structural framing and flooring. No wet area lining product (i.e. neither GIB
Aqualine® nor Villaboard) could protect against that sort of damage. The problem depicted
was not caused by the use of plasterboard, but by a leaky system. The Complainant also
believed James Hardie's advertising was misleading because it portrayed that Villaboard
would provide full protection against extensive and prolonged water exposure, which it
would not.

The Complainant offered the same argument about the magazine advertisement.

The Panel was of the view that readers of the magazine advertisement, in the publication
Architecture New Zealand, would take into account the hyperbolic puffery in the
recommendation for James Hardie Villaboard, however, the advertisement contained the
wording ―must be James Hardie VILLABOARD LINING‖ and ―No alternatives considered‖
which were presented as statements of absolute fact. Furthermore the depiction showed
―ROT IN PLASTERBOARD‖ where it had been exposed to extensive and prolonged water
exposure.

In making its determination the Panel said the following:

In the Panel’s view, Basic Principle 1 of the Code of Ethics (stating the need for
advertisements to comply with the laws of New Zealand) did not apply.

The television advertisement implied that Villaboard would not rot, whereas all plasterboard
products, not just standard plasterboard products, would rot in wet areas.

Whilst the advertiser argued that the advertisement was not directed at other specialist
plasterboard products but was intended to only apply to standard plasterboard, the Panel
believed that this distinction was not clear in the advertisements.

For this reason, the advertisements each contained statements and visual presentations
creating an overall impression which directly or by implication would be likely to exploit the
consumer’s lack of experience or knowledge.

This was not only in relation to the claim that Villaboard was the only wall boarding that
would not rot, but also the nature of the rotten wall shown, which would have resulted from
prolonged and sustained water damage, not the expected frequent splashes that wall boards
in bathroom and other wet areas would be subjected to.

Accordingly, the advertisements were misleading and in breach of Rule 2.

The Panel did not believe that the advertisements reached the threshold to denigrate the
competitor’s product or products and therefore they did not effect a breach of Rule 8 of the
Code of Ethics.
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Turning to the Code for Comparative Advertising, the Panel said the intent of the
advertisement had been to inform, not to disparage or attack competing products, and
accordingly, was not in breach of Guideline (a).

Turning to Guideline (b), which required comparative claims to be unambiguous and clearly
understandable so the there is no likelihood (emphasis added) of the consumer being
mislead as a result of the comparison, the Panel was of the view that the advertisements
failed on that count and were in breach of this guideline. The Panel said the advertisements
conveyed to consumers through implication that all plasterboard products, including
Aqualine®, would rot when installed in wet areas, whereas Villaboard would not.

Because the advertisements made explicitly clear that the subject of the advertisements was
wall lining, the tone of voice and manner of the advertisement did not identify a competing
product in a degrading manner and the subject matter of the comparison had not been chosen
to confer an artificial advantage upon the advertiser and accordingly, the advertisements
were not in breach of guidelines (c), (d) or (f).

In conclusion, because the Panel found the advertisements to be in breach of Rule 2 of the
Code of Ethics and Guideline (b) of the Code for Comparative Advertising, it ruled to Uphold
the Complaint.


Panel’s Ruling: Complaint Upheld

								
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