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					                                                                          09/433
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                                    DECISION

                        Special Meeting 26 August 2009

                      Convened Pursuant to Rule 3 of the

         Constitution of the Advertising Standards Complaints Board


Complaint 09/433

AWAP 09/021


              Complainant: New Zealand Institute of Architects Incorporated (NZIA)
              Advertisement: Deacon Holdings Ltd – G. J. Gardner Homes

Complaint: The television advertisement for G. J. Gardner Homes was broadcast
on television and also appeared on the www.gjgardner.co.nz website. It opened with
two presenters driving together in a car. The following dialogue took place between
them:

Female presenter: What do you do if your Architect keeps blowing your budget?
Male presenter: Get another one, or tear your hair out.
Female presenter: Hey lets go find out.
Male presenter: Ohhh nice house.

Text on screen says “Dreams in the Making. G. J. Gardner HOMES”.

The two presenters arrive at a house and talk to the owners of the house, text
appears on screen that says “Proctor Home Hamilton”. The two owners of the house
talk to the presenters about their home and the following dialogue takes place.

Male owner: Yeah, we actually love it out here, it's great for entertainment.
Male presenter: You’ve got two verandas?
Male owner: Yeah that's hers and that's mine.
Male owner: We nearly gave up on this project altogether. It just went way beyond
our budget, and we went to see Glenn Jones at GJ. He said he'd come around and
have a look and he said he could make something work, it was absolutely fantastic.
GJ just modified things and said we can do that, we can do this and we thought -
well, that's great.
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Female owner: I wanted an island bench with a breakfast nook.
Male owner: We wanted an architecturally created house something that has a bit of
difference.
Female presenter: Look at them, they look like twins. I love the way it all links in to
all the different areas.
Female owner: I love it.
Male owner: If I had to do it again I would with GJ.
Male presenter: So you would build another house?
Male owner: With GJ absolutely.

The two presenters are then shown leaving the house and address the camera
directly.

Female presenter: There's a hard way to build a new home
Male presenter: And then there's a GJ way.
Female presenter: See more at gjgardiner.co,nz

The following text appears on-screen at the end of the advertisement
“gjgardner.co.nz. G. J. Gardner HOMES.”


Complainant, New Zealand Institute of Architects Incorporated, said:

“This letter formally records a complaint brought by the New Zealand Institute of
“Architects in relation to a G.J. Gardner Homes Television Commercial ('TVC'), first
aired on Television One on the evening of Sunday 5 July 2009 (copy of the TVC
transcript attached). The same TVC is also 'featured' online on G.J. Gardner's
website homepage, at: www.gjgardner.co.nz.

The purpose of the TVC is to make a direct comparison between the services
provided by architects with the services offered by G.J. Gardner Homes. The TVC is
filmed as a testimonial and features two hosts, one of whom is local television
personality, Stacey Daniels.

Only a 'registered architect' can publicly identify themselves as an 'architect'. In order
to become a ‘registered architect', a person must comply with the requirements of the
Registered Architects Act 2005 (the 'Act'), which generally includes holding a
relevant tertiary degree and meeting various performance standards imposed by the
Act.

The NZIA represents more than 90 percent of all registered architects in New
Zealand.

The TVC unreasonably depicts architects and breaches both the Advertising Code of
Ethics and the Code for Comparative Advertising.

Advertising Code of Ethics
Rule 2: Truthful Representation.
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The TVC contains statements that both directly and by implication make false and
misleading representations about the cost and effectiveness of services provided by
architects.

The TVC also creates an overall impression that untruthfully depicts the nature of the
services provided by architects. This is likely to deceive or mislead consumers about
the true nature of the services provided by architects.

The statements depict architects as:

     Excessively costly;
     Unable to deliver workable design solutions on time and on budget; and
     Responsible for hindering the efficiency of building projects.

Excessive Cost

"So what do you do if your Architect keeps blowing your budget? Get another one, or
tear your hair out!"

This statement conveys to consumers the misleading impression that architects are
incapable of working within a construction budget by typifying architects "blowing
your budget" as a common place problem for building clients.

Workable Design Solutions

"We nearly gave up on this project altogether. It just went way beyond our budget,
and we went to see Glenn Jones at G.J. He said he'd come around and have a look
and he said he could make something work, it was absolutely fantastic".

This statement conveys to consumers the misleading impression that architects are
unable to deliver workable design solutions on time and on budget for clients.

Hindering of Efficiency of Building Projects

"G.J. just modified things and said we can do that, we can do this and we thought -
well, that's great".

"If had to do it again l would with G.J. So you would build another house? With G.J.
absolutely. There's a hard way to build a new home and then there's a G.J. way".

These statements (against the background of all prior statements) convey to
consumers the misleading impression that architects make building projects difficult
or that architects overly complicate the building process for consumers.

Rule 8: Denigration

The TVC contains statements (below) that denigrate the reputation of architects by
typifying excessive cost and complexity as being associated with the provision of
architectural services. This is not factually correct.

"So what do you do if your Architect keeps blowing your budget?
Get another one, or tear your hair out!"
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"We nearly gave up on this project altogether. It just went way beyond our budget,
and we went to see Glenn Jones at G.J. He said he'd come around and have a look
and he said he could make something work, it was absolutely fantastic".

"G.J. just modified things and said we can do that, we can do this and we thought-
well, that's great".

"There's a hard way to build a new home and then there's a G.J. way".

Rule 9: Testimonials

The TVC is portrayed as a testimonial; "Dreams in the Making" "Proctor Home,
Hamilton". The G.J. Gardner Homes website homepage further supports this (copy
attached).

The personal testimonial of the Proctors of Hamilton purports to convey their
experience as one in which their architect consistently exceeded their budget. The
testimonial also impliedly asserts that the Proctor's architect did not deliver a
workable design solution on time or on budget and that the involvement of the
architect hindered the efficiency of the project.

"We nearly gave up on this project altogether. It just went way beyond our budget,
and we went to see Glenn Jones at G.J. He said he'd come around and have a look
and he said he could make something work, it was absolutely fantastic".

"G. J. just modified things and said we can do that, we can do this and we thought -
well, that's great".

This testimonial is in breach of rule 9 because it is not fairly representative of "typical
cases" in which a client engages the services of an architect.

Code of Comparative Advertising
Guideline A

The TVC breaches Guideline A in that both the intent and connotation of the TVC is
to impliedly discredit, disparage and attack the services provided by architects.

The intent and connotation of the TVC is to convey the impression that architects are:
   Excessively costly;
   Unable to deliver workable design solutions on time and on budget; and
   Responsible for hindering the efficiency of building projects.

(Refer statements in support referred to under Rule 2: Truthful Representation).

Guideline B

The TVC breaches Guideline B as the comparative claim comparing the services
provided by an architect to those offered by G.J. Gardner Homes is ambiguous and
likely to mislead the consumer.
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"We wanted an architecturally created house, something that has a bit of
difference…l love the way it all links in to all the different areas. I love it".

The statement above (forming part of the comparative claim) implies that G.J.
Gardner Homes provides house designs created by architects, for consumers. There
is no further material provided in the TVC to verify that G.J. Gardner's architectural
services are provided by architects (i.e. professionals registered under the Act).

Consumers who engage the services of an independent architect registered under
the Act are assured to have a tertiary-qualified professional who has demonstrated
skills, expertise and experience that meets the prescribed professional and industry
standards,

The claim above is misleading to consumers who may, after viewing the TVC, think
that G.J. Gardner provides houses designed by architects, when the TVC gives no
basis for that claim.

Guideline D

The TVC breaches Guideline D as it identifies architects in a manner and tone of
voice that degrades the professional services provided by architects.

In the opening scene of the TVC, the hosts engage in the question-answer dialogue:

"So what do you do if your Architect keeps blowing your budget?"

"Get another one, or tear your hair out!"

The host who responds to the question does so in a manner and tone of voice that
conveys frustration, annoyance and dissatisfaction. This response has the effect of
degrading the reputation of architects in the eyes of consumers.

Conclusion

The NZIA strongly considers the TVC breaches Rules 2, 8 and 9 of the Advertising
Code of Ethics as well as Guidelines A, B and D of the Code of Comparative
Advertising. The NZIA has more than 3000 members who are directly and adversely
affected by the content of the TVC.

We understand that there is a process for fast tracking complaints. We further
understand that this complaint will qualify to be fast tracked because GJ Gardner
Homes is a direct competitor of NZIA's members. In those circumstances we would
be grateful if you would take immediate steps to fast track this complaint.”


The Chairman ruled that the following provisions were relevant:

Code of Ethics

       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
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       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).

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

       Rule 9: Testimonials - Advertisements should not contain or refer to any
       personal testimonial unless it is genuine, current, related to the experience of
       the person giving it and representative of typical and not exceptional cases.
       The claims in the testimonial should be verifiable.

Code for Comparative Advertising

       Guideline (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.

       Guideline (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.

       Guideline (d) The competition should be fairly and properly identified but
       ever in a manner or tone of voice that degrades the competitive product or
       service.


Procedure: The Chairman ruled to deal with the matter by adjudication with the
attendance of the parties pursuant to Rule 3 of the Complaints Procedures of the
Advertising Standards Complaints Board. This system was designed to resolve
disputes between competitors. Accordingly, the Chairman appointed a Panel.


The Panel: Ms J. Robson, Chairman of the Advertising Standards Complaints Board.
Co-panelists Mr E. Abernethy, Chairperson of the Advertising Standards Complaints
Appeal Board and Mr R. Moffat, Member of the Advertising Standards Complaints
Appeal Board.


The Complainant, New Zealand Institute of Architects Incorporated, was
represented by Mr J. Albert – Professional Services Manager (NZIA) and Mr S.
Stokes – Legal Counsel (Dawson Harford)


The Advertiser, Deacon Holdings Ltd – G. J. Gardner Homes, chose not to
attend the hearing.


The Advertiser, Deacon Holdings Ltd – G. J. Gardner Homes, said:
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“Thank you for your letter … received at our office today. Please be advised we will
be defending the claims made by J. Albert in relation our TVC featuring the
testimonial by the Proctors who are clients of our Hamilton franchise.

Interestingly I had offered to meet J. Albert to discuss his concerns but it appears he
has chosen to decline to do so. While we, along with many professional parties we
have discussed the advert with including the Commercial Approvals Bureau see
absolutely no issue with it in any form, we did not wish to upset any parties and were
at that time willing to listen and potentially make changes to satisfy J. Albert.

You letter requests we advise if an advertising agency was employed in the creation
and placing of the advertisement so you can contact them. Please be advised both
were performed by Draft FCB…

I note some immediate inaccuracies in J. Albert's letter. Stacey Daniels does not
appear as a host in this advertisement or any other we have created as he advises. I
also note J. Albert requests his complaint qualifies to be fast tracked as GJ Gardner
is a direct competitor of the NZIA’s members. This is incorrect, we utilise the services
of designers and architects to design homes for clients, Architects refer clients to us
to build homes. One party provides design services, the other is a builder. We are in
two quite distinctly different parts of the industry and different levels also. I have
never seen architects as competitors and see this as a false basis for J Albert to
request to fast track his complaint.

I will know prepare a response as you request, unless of course now that you have
viewed the advertisement you have summarily dismissed J. Albert's complaints.”


Further correspondence said:

“I write further to the letter of… Draft FCB in relation to this complaint.

Further to that letter I wish to note that GJ Gardner Homes does not agree that the
TVC is a comparative advertisement. The TVC is not an advertisement that
"identifies a competing product or service".

No particular architect is identified or is identifiable from the advertisement and there
is no reasonable basis for reading the advertisement as applying to all architects.

The word "architect" is used only once in the advertisement. This is where the
advertisement states
        "So what do you do if your Architect keeps blowing your budget?

        Get another one, or tear your hair out"

The advertisement then goes on to explain that the client had some difficulties before
coming to GJ Gardner Homes and then explains the good experience that the client
had with GJ Gardner Homes. This is purely factual. Importantly the focus of the
advertisement is on the good experience that the customer had with GJ Gardner
Homes. There is no comparison made with an identified architect or with architects
generally.
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Importantly the TVC was not intended to, and does not, make any comment about
the cost or effectiveness of services provided by architects generally. GJ Gardner
itself utilises the services of architects to design homes for clients. It has no wish to
depict architects generally as unable to provide a cost efficient or effective service.

I strongly resist the suggestion the TVC is intended to denigrate the reputation of
architects generally.

No statement is made in the TVC about the nature of services provided by architects
generally nor can that reasonably be implied from the context of the TVC.”


Further correspondence said:

“As you are aware I have just today retuned to New Zealand, and as of half an hour
ago viewed correspondence setting out the hearing for this Wednesday.
My company is a small business with limited resource so with some disappointment
I will not attend the hearing.
However that aside, in the circumstances I do not see a need for me or any legal
counsel to attend to represent our case. I am more than confident with the
information supplied, the advertisement itself etc, a responsible and sensible
decision will be made by the ASA and the advertisement will not be found in any
form to breach any advertising standards or be seen in the light J. Albert with such
extreme sensitivity has tried to paint it. I have taken considerable advice on this,
viewed your recent decisions including the complaint by the same party of Signature
Homes which was no up held.
Thank you very much for your assistance, the information you have forwarded and
help with this matter. I note I should advise I am in receipt of a letter from J. Albert
that notes if we do not intend to air the advertisement in the future they may not
pursue the complaint. I have not responded to this as see it in the circumstances,
inappropriate to do so.”


The Agency, DraftFCB, said:

“This letter responds to a complaint brought by the NZ Institute of Architects in
relation to the GJ Gardner 'Proctor of Hamilton' television commercial first aired on
Sunday 5 July 2009.

We, as the advertising agency responsible for the creation of the TVC, refute the
assertions made J. Albert in the lodging of this complaint.

Specifically, he maintains:

       'the purpose of the TVC is to make a direct comparison between the services
       provided by architects with the services offered by GJ Gardner homes'

This is incorrect. The purpose of the TVC was to highlight, via an actual real life
example, the ability of GJ Gardner to deliver a high quality home to brief and to
budget.
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Advertising code of ethics - rule 2: Truthful representation:

       'the TVC contains statements that both directly and by implication make false
       and misleading representations about the cost and effectiveness of services
       provided by architects'

Once again this is incorrect - and draws a very long bow. The home builders did in
fact have issues with their architect's ability to deliver the job on budget - but this is
not the purpose of the TVC.

       'the TVC creates an overall impression that untruthfully depicts the nature of
       the services provided by architects'

The purpose of the TVC was in fact to truthfully depict the quality and nature of the
services as provided by GJ Gardner. The assertion by J. Albert that it untruthfully
depicts the nature of the services provided by architects is misleading - and in fact
wrong.

       'The statements depict architects as...excessively costly...unable to deliver
       workable design solutions on time and on budget...responsible for hindering
       the efficiency of the building process'

Nowhere, not once, does the TVC set out to depict architects, as a profession, as
any of the above. The TVC simply uses the experience of a couple whose architect
failed to deliver to the expectations of the home builders. It should be the particular
architect who is called into question, not the home builders or their story as depicted
by the TVC

Excessive cost:

       '...the statement conveys to consumers the misleading impression that
       architects are incapable of working within a construction budget by typifying
       architects 'blowing your budget' as a common place problem for building
       clients'

Again this is patently incorrect, and was not the intent of the NC. Despite J. Albert's
assertion, the NC simply conveys the truth - that the architect employed by these
particular home builders was unable to deliver the home on budget. It is dis-
ingenious to the extreme to suggest this is making representation to the architectural
profession as a whole.

Workable Design Solutions:

       'the statement conveys to consumers the misleading impression that
       architects are unable to deliver workable design solutions on time and on
       budget for clients'

Again J. Albert is incorrect. The purpose of the TVC is not to denigrate the ability of
the architectural profession to deliver workable design solutions on time and on
budget. Its purpose was to convey GJ Gardner's ability to turn what had been a
highly unsatisfactory experience into a very happy one for the home builders.
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Hindering of Efficiency of Building Projects:

       'The statements convey to consumers the misleading impression that
       architects make building projects difficult or that architects overly complicate
       the building process for consumers'

As everyone who has undertaken the design and build of a new home will attest, it
can be one of the more stressful experiences in a couple's life. The statements `...if I
had to do it again I would with GJ...there's a hard way to build a new home and then
there's a GJ Way' simply refer to a proprietary process developed by GJ called the
GJ Way. This process ensures that the whole home building experience is a smooth
and enjoyable one. The TVC tries to reflect this by showing the home owners real
experience with GJ.

Denigration:

       'The TVC contains statements that denigrate the reputation of architects by
       typifying excessive costs and complexity as being associated with the
       provision of architectural services'

The TVC does not try to denigrate the reputation of architects generically. The TVC
specifically says '..so what do you do if your architect (singular, not plural) keeps
blowing your budget? Get another one, or tear your hair out'
The TVC specifically suggests the viewer, in the case of a similar bad experience,
get rid of their existing architect - and get another architect. It does not suggest that
the viewer dismiss architects all together.


Code of comparative advertising - guideline A

       The intent and connotation of the TVC is to convey the impression that
       architects are excessively costly, unable to deliver workable design solutions
       on time and on budget and are responsible for hindering the efficiency of
       building projects

The fact that the home builders did in fact have issues with their architect and his
ability to deliver the job on budget cannot be denied. These are true events. But the
purpose of the TVC was to highlight, via an actual real life example, the ability of GJ
Gardner to deliver a high quality home to brief and to budget.

Despite J. Albert's assertion, its purpose was not to denigrate or in any way
disparage the services and abilities of the architectural profession.

Code of comparative advertising - guideline C

       'The TVC breaches the guideline as it identifies architects in a manner and
       tone of voice that degrades the professional services provided by architects'

It's readily apparent to the impartial viewer that the TVC reflects the real life emotions
experienced by the home builders-these being frustration, annoyance and
dissatisfaction.
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It does not imply anything that did not actually happen to these home builders, and
certainly does not imply that everyone who chooses to use the services of an
architect will experience a similar outcome.

In conclusion, we did not set out to denigrate the architectural profession in any way.

Our objective was simply to show the real life experiences of a couple who had a
very happy and satisfactory experience with GJ Gardner.

And as such we are of the firm belief that the TVC does not breach the Advertising
Codes of Practice in any way.”


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

“We have been asked to comment on the complaint by the New Zealand Institute of
Architects ("NZIA") that the above commercial is in breach of the Code of Ethics and
the Code for Comparative Advertising.

It is regrettable that the NZIA has taken umbrage at this, frankly, rather inoffensive
commercial. In our opinion, their interpretation of the script is extreme and very
unlikely to be shared by the general public.

Code of Ethics - Rule 2: Truthful Presentation

       It is not entirely clear how Rule 2 is relevant as none of the comments in the
       complainant's letter concern claims made by GJ Gardner in relation to the
       services they provide.

       J. Albert does not dispute that the commercial is a truthful presentation of GJ
       Gardner's services. In addition, it is worth noting that GJ Gardner is not
       claiming, explicitly or implicitly, that they are registered architects or that they
       offer an identical service.

Code of Ethics - Rule 8: Denigration

       The NZIA seems to have construed almost every line in the script as a direct
       and intentional attack on the reputation of architects.

       This is, in our opinion, a very subjective interpretation as it seems clear to us
       that the overall intention of the commercial is simply to highlight the services
       provided by GJ Gardner. With the exception of the opening line, the
       commercial makes no mentioned of architects and talks exclusively about the
       customer's restrictive budget, expectations and experiencing when dealing
       with GJ Gardner.

       The only reference to architects is in the opening line which poses the
       question, "So what do you do if your architect keeps blowing your budget?
       Get another one or tear your hair out."
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       It would be illogical to conclude that this colloquial assessment of an
       unidentified architect's proposal is denigrating to the entire profession as,
       after all, one of the proposed solutions is to hire another architect.

Code of Ethics - Rule 9: Testimonials

       We have been assured by GJ Gardner's advertising agency that the
       testimonial is genuine, current, verifiable, and representative of a segment of
       GJ Gardner's customers. In other words, it is not exceptional.

Code for Comparative Advertising - Guidelines (a), (b) & (c)

       CAB disputes that this is a comparative advertisement as the testimonial
       refers only to the specific issues faced by a specific customer when building a
       house within their specific and unique requirements.

       The only marginally comparative information provided is that the customers
       could not afford to build the house proposed by their original architect so
       decided to opt for a GJ Gardner house instead. This is not a comparison but
       simply background information used to setup the customer's testimonial and
       circumstances.

       Furthermore, for the reasons stated above (Rule 8: Denigration) we do not
       see how this observation of fact can be considered as denigrating or
       disparaging to architects in general.

       In summary, we believe that the NZIA's interpretation of this commercial is
       extreme and see no grounds on which uphold their complaint. Any
       misperceptions that the general public may have about registered architects
       should not be attributed to this commercial.”


Oral submissions

Mr S. Stokes, for the Complainant, presented oral submissions further to the
Complainant’s written submissions.

The Chairman confirmed that no new evidence had been entered in the oral
submissions.


Deliberation


The Panel confirmed that prior to its deliberation it had read all correspondence
relevant to the complaint. It also identified the advertisement subject to complaint
and viewed a copy of this advertisement.

The Panel noted that the hearing date for the complaint had been rescheduled
following requests both from the Complainant and the Advertiser. In light of this, it
expressed disappointment at the Advertiser’s advice, two days prior to the hearing,
that it would not be attending the hearing.
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The Panel then confirmed the provisions from the Advertising Codes of Practice that
it was to consider the complaint against. It noted that these were Rules 2, 8 and 9 of
the Code of Ethics, and Guidelines (a), (b) and (d) of the Code for Comparative
Advertising.

The Panel confirmed that its role in deliberating on the advertisement was to
consider it from the point of view of a consumer to ascertain what their take-out of
the advertisement was likely to be.

The Panel noted that the Complainant was of the view that the cumulative effect of
the advertisement was misleading to consumers with regard to the nature of
architects and the services that they provided. It noted that the Complainant asserted
that the advertisement portrayed architects as “Excessively costly; Unable to deliver
workable design solutions on time and on budget; and responsible for hindering the
efficiency of building projects.” and that it denigrated, disparaged and discredited
architects. It also noted that the Complainant was of the view that the Advertisement
was in breach of Rule 9 of the Code of Ethics because it believed that the
advertisement presented a testimonial, which was not representative of typical cases
of people dealing with architects.

Keeping these assertions in mind, the Panel noted the specific areas of the
advertisement highlighted by the Complainant as being responsible for the overall
impression detailed above. In particular it noted dialogue between the two
presenters at the start of the advertisement where one of the presenters commented
to the other “So what do you do if your Architect keeps blowing your budget?” to
which the other replies “Get another one, or tear your hair out”. It also noted the
dialogue between the two presenters at the end of the advertisement which said
“There's a hard way to build a new home…And then there's a GJ way”. Additionally,
it observed dialogue in the middle of the advertisement where the owner said "We
nearly gave up on this project altogether. It just went way beyond our budget, and
we went to see Glenn Jones at G.J. He said he'd come around and have a look and
he said he could make something work, it was absolutely fantastic".

The Panel noted that the Advertiser disagreed with the Complainant’s interpretation
of the advertisement and asserted that the advertisement only referred to the
negative experience of the home owners with one architect. It noted where the
Advertiser said “The advertisement…explain[s] that the client had some difficulties
before coming to GJ Gardner Homes and then explains the good experience that the
client had with GJ Gardner Homes.” and further where it said “…the TVC was not
intended to, and does not, make any comment about the cost or effectiveness of
services provided by architects generally. GJ Gardner itself utilises the services of
architects to design homes for clients. It has no wish to depict architects generally as
unable to provide a cost efficient or effective service. I strongly resist the suggestion
the TVC is intended to denigrate the reputation of architects generally.”

The Panel considered that its first task in deliberating on the advertisement was to
consider whether or not, as asserted by the Complainant, the advertisement referred
generally to all architects. It noted that the conversation between the two presenters
at the start of the advertisement occurred before viewers had been introduced to the
owners of the home. It noted the Complainant’s view that this generalised the
statement regarding an architect blowing a budget, and therefore the impression
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created by the advertisement, to all architects rather than just the architect of the
home owners featured and referred to in the advertisement. The Panel then noted
the dialogue at the end of the advertisement where the presenters commented that
“There's a hard way to build a new home” “And then there's a GJ way”. The Panel
noted that the Complainant was of the view that the reference to “a hard way” at the
end of the advertisement was a reference back to “all architects” as the Complainant
asserted the whole advertisement related to.

The Panel noted that the wording of the question posed at the start of the
advertisement was “so what happens if your architect blows your budget?”. It noted
the reference to “architecturally designed house” in the advertisement; however it
noted that the advertisement contained no direct references to “architects” as a
profession. The Panel was of the view that this question was in the form of a
statement of possibility, by way of introduction to the advertisement, where the
presenters attempted to relate to a personal experience a viewer may have had or
might have in future, with an architect. It was of the view that the message conveyed
to viewers at the beginning of the advertisement was “if you’re having, or have had a
problem with your architect, you can go to another one, or here’s another
alternative”. It noted the end of the advertisement, especially where the presenters
referred to a “hard way” and “a GJ way” and accepted that this set up a comparison.
It was of the view, however, that this was not between GJ Gardner and architects in
general. It was of the view that the “hard way” would be understood by consumers to
refer to the personal experience of the couple in the advertisement, with one
architect, or to a more general stressful and ‘hard’ building experience that any
home builder could experience, whichever method of building design they chose. It
accepted that the advertisement relayed a negative home building experience that
one couple had with one architect, but it did not believe that the advertisement
referred to architects as a profession.

The Panel acknowledged the Complainant’s interpretation of the advertisement.
However, it was of the view that the advertisement was not likely to deceive or
mislead consumers regarding the nature of architects or their services as it was of
the view that the consumer take out of the advertisement would not be that the
advertisement referred to architects in general. Accordingly, it ruled that the
advertisement was not in breach of Rule 2 of the Code of Ethics.

It confirmed that the Code for Comparative Advertising was applicable to this
complaint. It said that the comparison in the advertisement was between a particular
architect employed by the home owners, and using G. J. Gardner. The Panel noted
that Guideline (b) of the Code for Comparative Advertising contained a lower
threshold for misleading advertising when considering comparative advertising than
Rule 2 of the Code of Ethics. It noted that Guideline (b) of the Code for Comparative
Advertising required that comparative advertising contain “no likelihood” that the
consumer would be misled.

The Panel reiterated its view that the consumer take-out of the reference to “a hard
way” in the advertisement would be to the homeowner’s experience with one
architect, or any other possibly difficult building experience. However, the Panel
noted again the high level of clarity required by Guideline (b). It said that as “a hard
way” was not explicitly defined in the advertisement, it could not be certain that there
was no likelihood of the consumer being misled as a result of the reference to the
                                           15                                 09/433
                                                                         AWAP 09/021




“hard way” in the advertisement. Accordingly it ruled that the advertisement was in
breach of Guideline (b) of the Code for Comparative Advertising.

The Panel then noted Rule 8 of the Code of the Ethics where it said “advertisements
should not denigrate identifiable products or competitors”. The Panel said that while
the advertisement made some general comment regarding the personal experience
of one couple who built and designed a house using an architect, it did not reach the
threshold to be said to denigrate any identifiable products or competitors. It said that
the advertisement focused on the success of the owner’s home building experience
with G. J. Gardner, and noted that it was of the view that the advertisement did not
refer to architects in general. Accordingly, it said that the advertisement was not in
breach of Rule 8 of the Code of Ethics, or in breach of Guidelines (a) and (d) of the
Code for Comparative Advertising.

Turning lastly to Rule 9 of the Code of Ethics the Panel noted that this required
testimonials in an advertisement to be representative of typical and not exceptional
cases. The Panel was satisfied that the advertisement was in the form of a
testimonial. It noted that it referred to the home building experience of two people,
identified in the advertisement as “The Proctors”, and featured them talking about
their experience with their architect. Accordingly, the Panel looked for substantiation
that this experience, as described by the Proctors in the advertisement, was
representative of a typical and not exceptional case of dealing with an architect. The
Panel noted that the Advertiser had not provided any substantiation that this was the
case. It accepted that the Commercial Approvals Bureau had provided a level of
comment around substantiation of the testimonial aspect of the advertisement, but
said it had not been provided with evidence of this substantiation. Accordingly, the
Panel ruled that the advertisement was in breach of Rule 9 of the Code of Ethics.

In summary, the Panel confirmed that it ruled that the advertisement was in breach
of Rule 9 of the Code of Ethics, and Guideline (b) of the Code for Comparative
Advertising, and not in breach of Rules 2 and 8 of the Code of Ethics, or Guidelines
(a) and (d) of the Code for Comparative Advertising. In accordance with its rulings,
the Panel ruled that the advertisement be upheld.


Decision: Complaint Upheld

				
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