ASA Adjudication on Lidl UK GmbH

Ad

a. A leaflet, for Lidl stores, advertised a range of garden products, many of which featured price comparisons with other retailers. A flash on eight of the products stated "[x]% CHEAPER compared to B&Q". Small text stated "Similar item - [description of item], £[price], purchased at B&Q in New Malden 6th February 2007". b. A national press ad, also for Lidl stores, featured a Landmann Lava Rock Gas Barbecue. A flash stated "£10 cheaper compared to B&Q 1". The '1' symbol led to a footnote that stated "Similar item - Lisbon Barbecue, £49.98, purchased at B&Q in New Malden 21st March 2007".

Issue

B&Q plc objected that:

1. the price comparisons in ad (a) were misleading because the "similar items" were not identified and therefore did not give customers a fair basis on which to compare products;

2. ad (b) was misleading because it did not make it sufficiently clear that the Landmann barbecue was not sold in B&Q stores; and

3. ad (b) contained an unfair and misleading comparison because the similar product used a different cooking mechanism.

CAP Code (Edition 11)

Response

1. Lidl UK (Lidl) said a dedicated team of staff was responsible for ensuring that the items being compared against were easily recognisable and that the consumer was not misled in any way.  They said they always purchased the products they intended to use in price comparisons, so that they could be assured they were available, and also so that they could carry out more detailed checks at their offices to ensure that the comparisons were fair and reasonable.  

They claimed they meticulously checked items to ensure they had the closest match, that they searched for comparable products on the Internet or by visiting other retailers' stores, and that they bought numerous items from different retailers so that they could take proper time and care in assuring themselves that they had similar products.  They sent a receipt from B&Q for the gardening tools featured in ad (a).  They asserted that the B&Q products were very similar to the items they were selling at the time, and that they checked the quality and functionality of the B&Q products with their own.  They supplied printouts for some of the products from the B&Q website and product codes for four of the B&Q products.  They listed the features they checked when they decided to compare the products.  For example, for the branch cutter set they checked: materials used, branch cutting diameter, length of blades, and handle extension length.  Lidl also listed the features they checked for in the other products in ad (a).  They said they deemed the quality features for all the items to be similar, and in some cases superior, to the B&Q products. They asserted that the issue of brand was incidental, that the ad did not make any comparison on the basis of brand and they considered it unlikely that consumers would make a comparison based on brand.

Lidl disputed that there was any uncertainty as to which products were being compared.  They said they had visited B&Q's website and were easily able to identify some of the products based on the price and description given in the ad.  They added that they had been unable to find some of the products on the website.  They said they had also visited a B&Q store and again found some of the products on sale, and again had been able to identify them with ease, based on the information in their ad.  They pointed out that given the time that had elapsed, some of the items were no longer on the B&Q website or in store.  

2. & 3.

Lidl argued that the Landmann barbeque and the Lisbon barbeque were similar in specification and they were therefore correct to compare them.  They said they did not understand why B&Q considered that the presence of a vapour bar made their product superior.    

Assessment

1. Upheld

The ASA noted Lidl's argument that the B&Q products were very similar to the items they were selling at the time.  We noted the prices and descriptions of the B&Q similar products in the ad matched those on the B&Q receipt provided by Lidl.  We also noted, however, B&Q's concern that the similar products were identified by a generic description only, and not by brand, and they had been unable to definitively ascertain against which of their products the comparison was being made.  

We noted Lidl had obtained B&Q product codes for four of the eight similar items but that they had not been able to provide details for the rest.   We also noted the Code requirement for advertisers to hold documentary evidence for their claims before publishing an ad.  We noted many of the Lidl products were labelled Florabest but that the brand of the similar items was not listed.  Where the similar item could be established from Lidl's response or our own research, we noted some were B&Q's own brand while the hedge trimmer was manufactured by Performance Power.  We considered that customers would see brand as a significant feature when comparing two items and that they would not be able to make an objective comparison from the information in ad (a).  We also considered that, although they had provided a list of the features they compared for each item, Lidl had not provided either the results of those comparisons or any other substantiation to demonstrate that the similar product selected was the closest to their own in specification.  We concluded that the ad was likely to mislead.

On this point, the ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products).

2. Not upheld

We noted the flash in ad (b) linked to a footnote.  We considered that the disclaimer, which named the Lisbon barbecue, made sufficiently clear to customers the basis of the comparison and that they would not assume that the Landmann barbecue was sold at B&Q.   

On this point, we investigated the ad under CAP Code clauses 3.1 (Substantation) and 7.1 (Truthfulness) but did not find it in breach.

3. Upheld

We noted the two products that had been compared were both double-burner gas barbecues.  We also noted, however, the Landmann barbecue used lava rocks to cook food whereas the Lisbon barbecue had vaporizer bars.  We understood that vaporizer bars were a new technology that reached cooking temperature more quickly than lava rocks and consumed fuel more efficiently.  We noted, in addition, vaporizer bars could be cleaned in dishwashers, unlike lava rocks which needed to be washed by hand.  We considered that the difference in the cooking mechanisms was a significant feature that was likely to influence customers when deciding which of the two products to purchase.  We concluded that the comparison was unfair and likely to mislead.

On this point, the ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products).

Action

We told Lidl to make the basis of a comparison clear in future ads and to ensure that they held data for all products compared.  We also told them to ensure that future comparisons were fair and accurate.

Adjudication of the ASA Council (Non-broadcast)