ASA Adjudication on ASDA Stores Ltd

Ad

National press and TV ads by Asda promoted a price comparison between products in their stores and in Morrisons' supermarkets.

The TV ad (a) showed black on-screen text against a white background. The text stated "Checked independently by sources including mySupermarket.co.uk. Prices checked 18/02/08." The voice-over stated "Last week, independent price checker mysupermarket.co.uk found that Morrisons were cheaper on 694 products". A yellow arrow moved across the screen. Black text on the arrow stated "694 branded products cheaper". The voice-over continued "Not bad, until you discover that the same independent price checker found Asda were cheaper on four times as many". A large green arrow moved across the screen and the yellow arrow disappeared. Text on the green arrow stated "ASDA 2955 branded products cheaper Why pay more?". The voice-over stated ."Asda, why pay more?"

The press ad (b) showed a large green arrow bearing down on a smaller yellow arrow with a crumpled tip. The text on the green arrow stated "Asda 2955 products cheaper". The text on the yellow arrow stated "Morrisons 694 products cheaper". A green box in the right-hand corner of the ad contained the text "Yep, we've done it again. The independent price checker says so. ASDA". Small print at the bottom of the page stated "Checked independently by sources including mySupermarket.co.uk for all 5880 same brand/same size or pro rata products. Prices collected in branches around Great Britain on 18/19 February 2008 and the Asda website."

Issue

Wm Morrison Supermarkets plc (Morrisons) challenged whether ads (a) and (b) were misleading because:

1. the website quoted as a source for Morrisons' prices did not carry their prices and the ads did not state which branches their product prices were checked in; and

2. it was not clear from the ads whether the 5880 products selected for inclusion in the comparison represented a fair selection of the two retailers' stocked products, because each retailer stocked over 15,000 products.

3. The ASA challenged whether the ads should set out how the general price claims made in the ads could be verified by consumers.  

CAP Code (Edition 11)

BCAP TV Code

Response

1. ASDA Stores Ltd (Asda) said the ads made clear that Morrisons' prices were taken from their stores around the country. They said they were collected by an independent market research company, then sent to mySupermarket.co.uk for independent verification. They said Morrisons operated a national pricing policy so their prices should be the same around the country. They said the identification of the stores was therefore not relevant.

Clearcast acknowledged that mySupermarket.co.uk did not have details of Morrisons' prices. However, they underlined that Asda had collected the relevant data in an equally robust way  by using an independent market research company. They said that data  was sound, reliable and did not require further explanation. They said they did not consider that the inclusion of the stores visited would benefit the viewer in any way. They pointed out that Morrisons had a national pricing structure and that this had been accepted by the ASA in a recent adjudication.

2. Asda said ad (b) clearly stated that the comparison was based on all 5880 same brand/size products. They said mySupermarket.co.uk had confirmed that those brands were the same. They said that to have compared more than 5880 products would have been to move away from a like for like comparison.

Clearcast said it was a condition of clearance that only identical, branded products were used in the price comparison. They acknowledged that each retailer may stock more products than were included in the comparison but said that many of those products would be unique to the retailer. They sent a copy of the spread sheet that showed the 5880 products used in the comparison and underlined that it had been provided before clearance.

3. Asda said they did not believe they were required by the advertising codes to make available a list of the products and prices used in the comparison to the consumer. They emphasised that the consumer could verify that information by visiting any Morrisons store, and said that even if the public could not verify the comparison, the truth or otherwise of the comparison was unaffected. They said they did not see how it was of benefit to consumers to be able to check the comparisons when the comparisons were under great scrutiny by their competitors.  

Clearcast said they did not see how the information used to make the comparison could be verified by consumers, given that it was collected by an independent company and then checked by mySupermarket.co.uk.

Assessment

1. Not upheld

The ASA considered the evidence sent by Asda. Because both Asda and Morrisons operated a national pricing strategy we did not consider it necessary for either the TV ad or the press ad to state which stores the prices were checked in. Although we noted mySupermarket.co.uk did not carry Morrisons' prices, we accepted the evidence showed they had used an independent price checker to gather pricing information from Morrisons' stores and that that information had been sent to mySupermarket.co.uk to work out the comparison made in the ad.  Because the on-screen text at the start of the TV ad stated "Checked independently by sources including mySupermarket.co.uk", and the footnote in the press ad stated "Checked independently by sources including mySupermarket.co.uk ... " we considered the ads did not imply prices could be found on that website, but made clear the prices had been checked by other sources as well mySupermarket.co.uk. We therefore concluded the ads were not misleading.  

On this point we investigated ad (a) under CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising) and 5.2.1(Evidence) but did not find it in breach.

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

2. Not upheld

We considered the evidence sent by Asda. We acknowledged Asda's assertion that the comparison was based on all same brand and same size products stocked by both supermarkets. Because the ads made clear they compared only same brand products, and because the evidence showed the comparison was based on all 5880 same brand/size products stocked by both supermarkets, we concluded the comparison was based on a fair selection of the retailers' products and the ads were not misleading.

On this point we investigated ad (a) under CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising), 5.2.1(Evidence) and 5.4.6 (Comparative advertising) but did not find it in breach.

On this point we investigated ad (b) under CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 18.1 and 18.3 (Comparisons) but did not find it in breach.

3. Upheld

We noted Asda and Clearcast's comments.  We noted that CAP Code clause 18.3 stated that comparisons with identified competitors should objectively compare one or more material, relevant, verifiable and representative features of the products used to make that comparison. Although we noted that that clause did not state explicitly how the representative features of those products should be verified and who they should be verified by, we noted that the European Court of Justice had ruled in 2006 (Lidl vs Colruyt), that in order for a general price comparison to be verifiable the advertiser should set out how the details used to make that comparison may be checked by the persons to whom the ad was addressed. In addition, we noted that under both Codes ads had to comply with the law.

Because it was not possible for consumers or competitors to check the products and prices used in the comparison using mySupermarket.co.uk, and because the ads did not set out how consumers and competitors could check that information for themselves, we concluded that the ads did not satisfy the criterion of verifiability as defined in the 2006 European Court of Justice ruling, and were therefore in breach of the advertising Codes.

On this point ad (a) breached CAP (Broadcast) TV Advertising Standards Code rule 1.1 (Complying with the law).

On this point ad (b) breached CAP Code clauses 18.3 (Comparisons).

Action

Ad (a) must not be broadcast again in its current form. Ad (b) must not appear again in its current form. We told Asda to ensure that future comparative advertising with identified competitors set out how consumers and competitors could verify the products and prices used to make that comparison for themselves, for example by including a link to a website or a postal address.

Adjudication of the ASA Council (Broadcast)

Adjudication of the ASA Council (Non-broadcast)