ASA Adjudication on Scottish and Southern Energy plc

Ad

An internet banner ad and a poster for an energy provider:

a. The internet banner ad stated "THE CHEAPEST ENERGY DEAL IN TOWN TAKE CONTROL BE REWARDED Southern Electric Energy made better Terms and conditions apply".

b. The poster had headline text that stated "THE CHEAPEST DUAL FUEL DEAL IN TOWN*". Footnoted text stated "*Comparing Scottish Hydro's new online dual fuel Direct Debit tariff with all other UK major suppliers inclusive of the £40 energy bill credit. £40 energy credit only available to new customers ... Based on the Consumer Focus approved average domestic consumption (3,300 kWh electricity per annum and 20,500 kWh gas per annum). Excludes Prepayment tariffs ... Based on prices at 7 September 2009. Terms and conditions apply".

Issue

1. British Gas Ltd challenged whether the claim "THE CHEAPEST ENERGY DEAL IN TOWN" in ad (a) was misleading, because it did not make clear that the claim was based on average consumption of dual fuel (electricity and gas), included a £40 joining bonus and applied to certain regions and direct debit customers only.

2. Three complainants, who lived in the regions where ad (b) appeared, challenged whether it was misleading.

CAP Code (Edition 11)

Response

1. Scottish and Southern Energy plc (SSE) said ad (a) clearly stated "Terms and conditions apply", and explained that when customers clicked on the ad they were taken directly to their website where the qualifications to the claim were stated in full. They provided a copy of the qualifier from the landing page, which they pointed out stated that the claim was based on average consumption, direct debit and applied to certain regions. SSE said they did not consider it was necessary to highlight those conditions within the banner ad itself, and pointed out that CAP guidance stated that significant terms and conditions relating to a banner ad could be included on the landing page, as long as they were displayed prominently on that page.

SSE said they made every reasonable effort when targeting the ad to make sure that the claim was accurate for the person reading it. They explained the ad only appeared on online channels relevant to the regions where the claim applied, for example stv.tv, and provided a copy of their media schedule in order to demonstrate the sites where the banner ad had been displayed. SSE said, because of the level of uncertainty in online advertising, they provided further details of the specific regions to which the claim applied on the landing page.

2. SSE explained that the product, their Go Direct tariff, was not available through internet comparison sites, and customers could only join the tariff directly through them. They said comparison sites had a varied approach to presenting the Go Direct price, but many did not apply the £40 joining bonus to the overall Go Direct price, which would give the impression that their tariff was not the cheapest. In addition, some price comparison sites had not used the reduced Go Direct energy prices that came into effect towards the end of the ad campaign, but had used their standard prices instead. SSE explained that the Go Direct tariff was the cheapest for the duration of the campaign; they responded to any competitors' price changes by reducing their own prices, which were then backdated for the duration of the campaign and applied to all their customers. SSE provided screen shots from a comparison site which showed that the joining bonus had been excluded from the information about the Go Direct tariff. They also provided comparative price data that they said showed the Go Direct tariff was the cheapest dual fuel tariff in the regions where the complainants lived for the duration of the campaign.

Assessment

1. Upheld

The ASA considered that, because of constraints of space in a banner ad, significant information likely to influence a consumer's decision to take up an offer should be displayed prominently on the landing page, one click-through away from the banner itself. We noted that the ad stated that terms and conditions applied and that those conditions, including information about average consumption, direct debit and regional and pre-payment exclusions, were detailed prominently and in full on the landing page. We also noted, however, that the "cheapest energy deal" claim was dependent on the supply of more than one fuel. We considered that this information was more than 'significant information likely to influence a consumer's decision to take up an offer', but was, in fact, a more accurate description of the offer itself. We considered that the claim's dependence on dual fuel should have been stated prominently within the banner ad itself, and because it was not we concluded that the ad was misleading.

Ad (a) breached CAP Code clauses 7.1 (Truthfulness) and 19.1 (Other comparisons).

2. Not upheld

We noted that the complainants had found cheaper dual fuel energy deals on some price comparison sites in early October 2009, but we also noted that, because the Go Direct deal was only available direct from SSE, the details on the price comparison sites might not have been accurate. We understood from the documentation provided by SSE that the Go Direct tariff was the cheapest duel fuel tariff in the regions where the complainants lived on 7 September, when the £40 joining bonus was taken into account, and we also understood that, due to steps taken by SSE, it remained the cheapest tariff for the duration of the campaign. We noted that the small-print on the poster provided details of the terms and conditions to the offer, and stated that the "cheapest" claim was dependent on a £40 energy bill credit, available to new customers only. Because the Go Direct tariff was cheapest in those regions on the date advertised (7 September 2009) and for the duration of the campaign, when the £40 bonus was included, and because the joining bonus was qualified in the ad, we concluded that the claim was not misleading.

We investigated ad (b) under CAP Code clauses 7.1 (Truthfulness) and 19.1 (Other comparisons) but did not find it in breach.

Action

Ad (a) must not appear again in its current form. No further action necessary in respect of ad (b).

Adjudication of the ASA Council (Non-broadcast)