ASA Adjudication on ASDA Stores Ltd

Ad

a. Voice-over in a TV ad for Asda stated "She grabs a basket, knowing shopping's changed because for the first time if it could've cost her less elsewhere we'd give her the difference off her next shop. It's the new Asda price guarantee and it's for every single one of you." On-screen text stated "mysupermarket.co.uk & independent data, exclusions apply. Vs Tesco, Sainsbury's, Morrisons, Minimum 8 comparable items. Conditions apply. Difference via e-voucher. Verification on website". Signs were posted with the text "SAVING YOU MONEY EVERY DAY", "Guaranteed!" and "Check for yourself!" printed on them. Text inside a logo at the end of the ad stated "ASDA Price GUARANTEE".

b. A national press ad showed a lamb joint. Text stated "If your grocery shopping could have cost less elsewhere we'll give you the difference - Guaranteed!". Text inside a logo stated "ASDA Price GUARANTEE - If your grocery shopping could have cost less elsewhere we'll give you the difference - Guaranteed!". Footnote text stated "powered by mysupermarket.co.uk. Comparisons made against Tesco, Sainsbury's and Morrisons only. Minimum of 8 different, comparable products. Claims must be made within 28 days. £25 total claims in any one month. Maximum 10 claims per month".

c. Two national press ads showed hardback and children's books and football related items respectively. In each case, text stated "If your grocery shopping could have cost less elsewhere we'll give you the difference - Guaranteed!". Text inside a logo stated "ASDA Price GUARANTEE - If your grocery shopping could have cost less elsewhere we'll give you the difference - Guaranteed!". Footnote text stated "powered by mysupermarket.co.uk. Comparisons made against Tesco, Sainsbury's and Morrisons only. Minimum of 8 different, comparable products. Claims must be made within 28 days. £25 total claims in any one month. Maximum 10 claims per month".

d. A national press ad stated "Don't waste money this Bank Holiday. The Asda Price Guarantee means your shopping will cost less than Tesco, Morrisons or Sainsbury's. Or we'll refund the difference. Guaranteed". Text inside a logo stated "ASDA Price GUARANTEE." Footnote text stated "powered by mysupermarket.co.uk. Comparisons made against Tesco, Sainsbury's and Morrisons only. Your shopping must consist of a minimum of 8 different, comparable products. Claims must be made within 28 days. Difference via voucher for comparable products. £25 total claims in any one month. Maximum 10 claims per month. Exclusions apply".

e. A national press ad showed food which included burgers and sausages with salad garnish, garlic bread, Pringoooals, Heinz Tomato Ketchup, Coca Cola and Ben & Jerry's ice cream. Text stated "This weekend switch and save with Asda. Check online at [website address] - Buy all of this for less at Asda or we'll give you the difference". Footnote text stated "powered by mysupermarket.co.uk. Comparisons made against Tesco, Sainsbury's and Morrisons only. Minimum of 8 different, comparable grocery products. Claims must be made within 28 days. Difference via voucher for comparable products. £25 total claim in any one month. Maximum 10 claims per month. Exclusions apply. For further information, full terms and conditions go to [website address]".

Issue

WM Morrison Supermarkets (Morrisons) challenged whether the claim "Asda Price Guarantee" in all the ads was misleading and could be substantiated because:

1. they believed the information captured by mysupermarket.co.uk (mysupermarket) and used as the basis of the price comparison could not guarantee an accurate reflection of the price of goods sold in Morrisons. Morrisons said mysupermarket scanned shelf price labels in Morrisons and that, if the labels were incorrect or out of date, the information would be unreliable;

2. they believed that, while Asda collected price information from Tesco and Sainsbury's daily, they collected it from Morrisons twice a week only, on days when Morrisons said their promotions were less likely to be active;

3. they believed Asda excluded some own brand and branded products from the price comparison data;

4. they believed non-food products, which they believed accounted for approximately 18 per cent of Asda's total weekly sales, were excluded from the price comparison, which they believed made the comparison unrepresentative of a typical customer's weekly shop.

Morrisons also challenged whether the ads listed at (b) and (c) were misleading because they understood:

5. own label fresh meat was excluded from Asda's price guarantee;

6. non-grocery products (such as home electrical and entertainment products) were excluded from Asda's price guarantee;

7. the World Cup related products featured were exclusive to Asda and not, therefore, available at Morrisons, Tesco or Sainsbury's.

8. Morrisons and Tesco challenged whether ads (a) and (d) were misleading because they suggested Asda was generally cheaper than Morrisons, Tesco and Sainsbury's when they believed there were significant exclusions from the price comparison.

9. Morrisons challenged whether ad (e) was misleading because it failed to provide clarification of the products featured and because some of the items, such as fresh meat and salad, were excluded from Asda's price guarantee.

CAP Code (Edition 11)

BCAP TV Code

Response

1. Asda said a third-party agency scanned shelf-edge prices and promotions in Morrisons stores in various locations across the UK every Monday and Wednesday, recording three prices for each product to minimise the risk of recording inaccurate price information. If a recorded price for a product was 20 per cent different from the price recorded in the previous week, the agency made an additional confirmation of the price. Asda said checks were carried out to ensure the data was robust and as accurate as possible and that more significant pricing and product identification discrepancies were investigated manually. Asda accepted that the price comparison exercise in Morrisons relied on the accuracy of shelf-edge labels but they believed the process was robust and involved processes designed to remove inaccuracies.

Clearcast said that, because Morrisons did not have an online presence, unlike Tesco and Sainsbury's, the Morrisons data needed to be collected manually. Clearcast said they had examined the online and manual processes at an initial stage and were satisfied that it was a good and fair way of collecting competitor data.

2. Asda said they were unaware of Morrisons's promotional plans or activities. By collecting price data from them twice a week, however, they believed they obtained the majority of price changes at Morrisons on a weekly basis. They said the process was designed to provide accurate price data for customers and was not designed to take place when Morrisons was less likely to be undertaking promotional activity.

Clearcast said it would be unrealistic to expect Asda to collect data as frequently from a supermarket with no online presence as from those that did have an online presence, but that they were in any case happy with Asda's assurance that the collection of data was not designed to take place when Morrisons were less likely to be undertaking promotions.

3. Asda said on-screen text in the TV ad stated that exclusions applied; explained that items needed to be comparable and gave a website address where prices could be verified and where full terms and conditions were given. They said it was only possible for customers to participate in the offer by visiting that website. They said the Asda Price Guarantee covered all comparable products as set out on their website. They said mySupermarket determined whether a product could be compared (and whether, therefore, it was covered by the offer) by taking into account criteria for like-for-like comparisons; previous ASA adjudications and discussions; relevant legislation and legal advice. Regarding the specific items Morrisons had cited as not being included in the price comparison, Asda maintained that comparable products had not been available and that prices at Morrisons used in the comparison were accurate.

Clearcast said that the on-screen text that stated that exclusions applied alerted the shopper to the fact that the offer did not cover everything. They said they had advised Asda that everything seen in the TV ad needed to be covered by the price guarantee. Clearcast were satisfied that Asda compared like-for-like items based on identical or nearest (10 per cent or less difference in size) match.

4. Asda said ads (b) and (c) referred to "grocery shopping" alongside the Asda Price Guarantee logo; that ads (d) and (e) referred to "comparable grocery products" in the footnote text and that the terms and conditions on Asda's website stated the categories of product that were not included in the offer. Asda said the ads did not claim to be representative of a customer's weekly shop and did not imply that all products sold at Asda were covered by the price guarantee offer. They believed the ads made clear that the offer applied to comparable, grocery products.

Clearcast said they were happy that the offer covered the purchases a customer would associate with supermarket shopping the most - groceries and toiletries - and that the on-screen text that stated exclusions applied alerted the consumer to the fact that the offer did not cover everything.

5. Asda said fresh meat was included in the offer but that a comparison with the whole lamb leg featured in the ad had not been made with Morrisons because the nearest available product, lamb shank, was not considered to meet like-for-like comparison criteria based on description and cut of meat.

6. Asda referred to their response on point 3 above.

7. Asda said the Asda Price Guarantee logo, accompanying text and terms and conditions did not imply that the football related items were included in Asda's price guarantee offer. They said text alongside the Price Guarantee logo stated "If your grocery shopping could have cost you less elsewhere we'll give you the difference" and that footnote text stated "Your shopping must consist of a minimum of 8 different, comparable grocery products". They said the Asda price guarantee banner was included to create awareness of the price checking and matching facility.

8. Asda said there was no explicit or implied claim in the ads that Asda was generally cheaper than Tesco, Morrisons and Sainsbury's. They said the TV ad simply informed viewers that they would receive any difference if their shopping would have cost them less at Tesco, Morrisons or Sainsbury's and that the press ad stated "The Asda Price Guarantee means your shopping will cost less than Tesco, Morrisons or Sainsbury's. Or we'll refund the difference. Guaranteed". They considered both ads simply highlighted that if a customer's shopping could have cost less at Tesco, Morrisons or Sainsbury's, Asda would give them the difference.

Clearcast said the TV ad simply suggested to viewers that they could check Asda's website to get the difference if their shopping would have been cheaper elsewhere. They did not believe the ad suggested every item or most items would be cheaper.

9. Asda said all the products shown in ad (e) were compared against Tesco, Sainsbury's and Morrisons and were therefore covered by the Asda Price Guarantee. They provided a spreadsheet comparison that listed the products shown in the ad and their respective prices at Asda, Tesco, Sainsbury's and Morrisons at the time the ad was published.

Assessment

1. Not upheld

The ASA noted that Asda compared their prices with those of Morrisons by scanning shelf-price labels whereas Asda checked prices online where competitors had an online presence. Notwithstanding the concerns we express below, we did not consider that the difference in comparison methods in itself invalidated the general claim that Asda compared prices of its groceries against those of Tesco, Sainsbury's and Morrisons and offered a price guarantee to its customers against those competitors. Because of that, we concluded that the claim "Asda Price Guarantee" was not misleading in that context.

On this point we investigated ad (a) under CAP (Broadcast) TV Advertising Standards Code rules 5.1.1, 5.1.2 and 5.1.3 (Misleading advertising) but did not find it in breach.

On this point we investigated ads (b), (c), (d) and (e) under CAP Code (Edition 11) clause 7.1 (Truthfulness) but did not find them in breach.

2. Not upheld

We noted that Asda compared their prices with those of Morrisons twice a week whereas they made daily checks on the prices of Sainsbury's and Tesco, who both had an online presence. We noted that it would be easier to check prices online than it would be to scan shelf-edge prices. We noted that Morrisons believed it was common knowledge that their promotions began on Thursdays and ran until Sundays, meaning that a price check made before Thursday would not take account of a price reduction at Morrisons. To substantiate their assertion, Morrisons had supplied copies of two price promotion ads which stated "Hurry! While stocks last. Offers end Sunday". We did not, however, consider that that evidence demonstrated that it would be common knowledge that Morrisons promotions began on Thursdays and ran until Sundays. Notwithstanding the concerns we express below, we did not consider that the difference in the frequency of price checks invalidated the general claim that Asda compared prices of its groceries against those of Tesco, Sainsbury's and Morrisons and offered a price guarantee to its customers against those competitors. Because of that, we concluded that the claim "Asda Price Guarantee" was not misleading in that context.

On this point we investigated ad (a) under CAP (Broadcast) TV Advertising Standards Code rules 5.1.1, 5.1.2 and 5.1.3 (Misleading advertising) but did not find it in breach.

On this point we investigated ads (b), (c), (d) and (e) under CAP Code (Edition 11) clause 7.1 (Truthfulness) but did not find them in breach.

3. Not upheld

We noted that all the ads stated the name of the independent company that had made the price checks. We also noted that it was mySupermarket who determined whether a product could be compared and whether it would be covered by the Asda price guarantee. We considered, nevertheless, that customers would expect the price comparison data on which Asda's price guarantee claim was based to reflect the prices that they as customers would pay for the same or comparable products when shopping in the stores. Of the products Morrisons believed had been excluded or omitted from the offer, we noted that Morrisons had provided data which showed they had sold packs of conference pears when the ads ran and in the weeks that preceded them. We also noted Asda's explanation that the item was described incorrectly on their price check website and that they had, in fact, sold a smaller pack of pears that was not considered to be equivalent to the pack sold by Morrisons, hence the equivalent of Asda's product was listed as not available at Morrisons. We noted that Asda's price check website had therefore given incorrect information in that respect. We considered, however, that a very small error margin, given the number of product lines Asda compared, did not invalidate the general claim that Asda compared prices of its groceries against those of Tesco, Sainsbury's and Morrisons and offered a price guarantee to its customers against those competitors. Because of that, we concluded that the claim "Asda Price Guarantee" was not misleading in that context.

On this point we investigated ad (a) under CAP (Broadcast) TV Advertising Standards Code rules 5.1.1 (Misleading advertising), 5.2.1 (Evidence) and 5.4.6 (Comparative advertising) but did not find it in breach.

On this point we investigated ads (b), (c), (d) and (e) under CAP Code (Edition 11) clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 18.1, 18.2 and 18.3 (Comparisons with identified competitors and or their products) but did not find them in breach.

4. Upheld (in relation to ads (a), (c) and (d) only)

We noted that on-screen text in ad (a) and footnote text in the ads listed at (c) stated "Exclusions apply". We noted that oranges were identifiable in ad (a) but considered the overall context of the ad was general (the woman was seen entering a large Asda branch which would sell non-grocery items and the voice-over referred to "shopping's changed" and "it's the new Asda price guarantee and it's for every single one of you"). Given the overall context of the ad, we considered the small on-screen text that stated "Exclusions apply" was not sufficient to warn viewers that the Asda price guarantee did not apply to non-grocery items. Because of that, we concluded that the ad was misleading.

We noted that the ads listed at (c) showed hardback and children's activity books and football related items and that those items were not included in Asda's price guarantee offer. We noted that footnote text stated "Exclusions apply" and that other text stated "If your grocery shopping could have cost less elsewhere we'll give you the difference". Given the prominent appearance of the hardback and children's activity books and football related items and the prominent appearance of the logo "ASDA Price GUARANTEE" and "Guaranteed!", however, we considered the footnote and other text referred to above was not sufficient to warn readers that non-grocery items were not included in the Asda price guarantee. Because of that, we concluded that the ads listed at (c) were misleading.

We noted that prominent body copy in ad (d) stated "The Asda Price Guarantee means your shopping will cost less than Tesco, Morrisons or Sainsbury's. Or we'll refund the difference. Guaranteed". We noted that footnote text referred to customers needing to have bought a "Minimum of 8 different, comparable grocery products" and stated "Exclusions apply". We considered, however, that, given that the supermarkets listed in the ad sold non-grocery as well as grocery items and the general reference to "your shopping", the footnote text was not sufficient to warn readers that non-grocery items were not included in the Asda price guarantee. Because of that, we concluded that the ad was misleading.

We noted that the lamb joint shown in ad (b) and the products shown in ad (e) were all grocery products that would be covered by Asda's price guarantee. We considered, for those reasons, ads (b) and (e) suggested the price guarantee applied to grocery shopping but did not suggest it applied to non-grocery items. Because of that, we concluded that those ads were not misleading.

On this point ad (a) breached CAP (Broadcast) TV Advertising Standards Code rules 5.1.1, 5.1.2 and 5.1.3 (Misleading advertising), 5.2.1 (Evidence) and 5.2.5 (Guarantees).

On this point the ads listed at (c) and ad (d) breached CAP Code (Edition 11) clauses 7.1 and 7.2 (Truthfulness).

On this point we investigated ads (b) and (e) under CAP Code (Edition 11) clauses 7.1 and 7.2 (Truthfulness) but did not find them in breach.

5. Not upheld

As in point 4 above, we noted that ad (b) showed a lamb joint; that Asda had provided evidence that showed own label fresh meat was included in Asda's price guarantee offer; and Asda's explanation that a comparison had not been made with Morrisons because the nearest product that had been identified, lamb shank, was not considered to meet comparison criteria. We noted that the data Morrisons provided showed Morrisons had sold whole leg lamb joints in significant numbers at the time of the ad and in the week that preceded it. We noted that Asda's price check website had therefore given incorrect information in that respect. We were concerned that Asda's price comparison check had failed to pick up a similar product sold at Morrisons despite an ad that featured lamb joints so prominently. Nevertheless, because Asda had provided evidence that showed own label fresh meat was included in their price guarantee offer, we did not consider that a very small error margin, given the number of product lines Asda compared, did not invalidate the general claim that Asda compared prices of its groceries against those of Tesco, Sainsbury's and Morrisons and offered a price guarantee to its customers against those competitors. Because of that, we concluded that the ad was not misleading.

On this point we investigated ad (b) under CAP Code (Edition 11) clauses 7.1 and 7.2 (Truthfulness) but did not find it in breach.

6. & 7. Upheld

As in point 4 above, we noted that the ads listed at (c) showed hardback and children's activity books and football related items which were not included in Asda's price guarantee offer. We noted that footnote text stated "Exclusions apply" and that other text stated "If your grocery shopping could have cost less elsewhere we'll give you the difference". Given the prominent appearance of the hardback and children's activity books and the football related items and the prominent appearance of the logo "ASDA Price GUARANTEE" and word "Guaranteed!", however, we considered the ad suggested those items were included in the Asda price guarantee and that the footnote and other text referred to above was not sufficient to warn readers that they were not. Because of that, we concluded that the ads listed at (c) were misleading.

On these points the ads listed at (c) breached CAP Code (Edition 11) clauses 7.1 and 7.2 (Truthfulness).

8. Upheld

We noted that ad (a) contained on-screen text that explained how Asda's price guarantee offer worked. We considered, however, that other elements of ad (a) referred to shopping and saving generally. The woman was seen entering a large Asda branch which would sell a wide variety of items. The voice-over referred in general terms to supermarket shopping ("... shopping's changed because for the first time if it could've cost her less elsewhere we'd give her the difference off her next shop") and on-screen signs stated "SAVING YOU MONEY EVERY DAY - Guaranteed!". We considered the overall impression of the ad was that the savings claims for Asda applied to shopping generally rather than to specific items and suggested Asda were generally cheaper than Morrisons, Tesco and Sainsbury's. Because of that, we concluded that ad (a) was misleading on this point.

We noted that ad (d) contained footnote text that explained how Asda's price guarantee offer worked. We considered, however, that the wording "Don't waste money this Bank Holiday. The Asda Price Guarantee means your shopping will cost less than Tesco, Morrisons or Sainsbury's. Or we'll refund the difference. Guaranteed" and "ASDA SAVING YOU MONEY EVERY DAY" suggested that the savings claims referred to shopping generally rather than to specific items and suggested Asda was generally cheaper than Morrisons, Tesco and Sainsbury's. Given that the supermarkets listed in the ad sold non-grocery as well as grocery items and the general reference to "your shopping," we considered that the footnote text that stated "Exclusions apply" was not sufficient to warn readers that the savings claims applied to specific items rather than shopping generally. Because of that, we concluded that the ad (d) was misleading on this point.

On this point ad (a) breached CAP (Broadcast) TV Advertising Standards Code rules 5.1.1, 5.1.2 and 5.1.3 (Misleading advertising), 5.2.1 (Evidence) and 5.2.5 (Guarantees).

On this point ad (d) breached CAP Code (Edition 11) clauses 7.1 and 7.2 (Truthfulness).

9. Not upheld

We noted that the ad showed identifiable products, all of which were included in Asda's price guarantee offer and that it stated "Buy all of this for less at Asda or we'll give you the difference". We also noted that Asda had supplied information comparing the prices of the same products at Asda, Tesco, Sainsbury's and Morrisons which showed that all of the items were, therefore, included in Asda's price guarantee offer that, if a customer could not buy all the products shown for less at Asda than they would have paid at Tesco, Sainsbury's or Morrisons, Asda would give them the difference. Because of that, we concluded that the ad was not misleading.

On this point we investigated ad (e) under CAP Code (Edition 11) clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 18.1, 18.2 and 18.3 (Comparisons with identified competitors and or their products) but did not find it in breach.

Action

Adjudication of the ASA Council (Broadcast)

Adjudication of the ASA Council (Non-broadcast)