Background
Summary of Council decision:
Five issues were investigated, of which four were Upheld and one was Not upheld.
Ad description
A website, www.mychoice.co.uk, which sold household appliances, stated on a product page "Rangemaster PDL100DFFGB/C 97560 Professional Deluxe 100 Range Cooker Now £1739.00 was £2063.00 saved £324 ... Sale Ends 29 Feb ... Free delivery on all purchases!". Hovering the mouse pointer over a small question mark icon next to the 'free delivery' claim caused text to appear which stated "Excludes Scottish Highlands, N.I., IoW, IoM, C.I - See Delivery Information for full details".
Another product page, for the "New World NW601F Built In Oven Electric Metallic Purple" stated "New World Electric Oven and Hob Promotion". A banner under an image of the product stated "FREE matching colour Morphy Richards Accents kettle or toaster". The website was viewed on 29 February 2012.
Issue
The complainant challenged whether the following claims were misleading and could be substantiated:
1. "Free delivery on all purchases!", because it excluded a number of places and the website did not make that clear;
2. "Now £1739.00 was £2063.00 saved £324", because he did not believe the advertiser had previously sold any units of the product at the 'was' price;
3. the claim "Sale Ends 29 Feb", because when he visited the website after 29 February the pricing information was the same but the claim had been changed to state "Sale Ends 31 Mar"; and
4. "FREE matching colour Morphy Richards Accents kettle or toaster", because the advertiser appeared to be an internet retailer and therefore consumers would not be entitled to claim a free item.
5. The complainant also challenged whether the ad was misleading even if the free kettle or toaster promotion was valid, because it did not make clear that you must purchase both a hob and an oven to qualify for a free item.
Response
1. Astrocroft Ltd t/a mychoice.co.uk (mychoice) said that product pages on the website included two links to information about their delivery services: the first, which appeared when users hovered the mouse pointer over the question mark icon (a 'tool tip'), stated which areas were excluded from the free delivery offer and referred users to the "Delivery Information" page; and the second was a link further down the page, titled "Delivery information", which brought up a pop-up box which provided information about their delivery services. Text in that box included "mychoice deliver absolutely free, although there are some minor exceptions (for example the Highlands of Scotland and Northern Ireland). For more details please refer to the section entitled 'Delivery Information' at the bottom of this website." They said the "Delivery Information" page included all conditions related to the offer of free delivery, and any charges that might apply in exceptional circumstances. The page included a map of the UK and the Republic of Ireland divided into four zones, the largest of which was the free delivery area, and indicated the cost of delivery to northern Scotland, Northern Ireland, the Republic of Ireland, and non-mainland UK. mychoice said it was clear when and where delivery charges might apply, and that relevant information was available without moving away from product pages. They added that they did not make any claim that the offer of free delivery was to all locations, and they had never received any complaints to that effect.
2. mychoice said the product was part of a new range and was first listed in a trade price list published by AGA Rangemaster Ltd on 1 October 2011; they provided a copy of that list. They said the product went on sale on their website at £2063 in November 2011, and they then reduced it to £1739 in January 2012; they provided copies of their own price lists for November 2011 and January 2012 which showed the product listed at those prices. They said they had checked the price of the product at other retailers before setting their own price, and they had offered the product for sale at £2063 for six weeks before reducing the price. However, they confirmed that they had not sold the product at any price. mychoice considered that was because it was a relatively new model and therefore had not fully established its presence on the market, and because it was a very large, high value, niche and expensive appliance which did not sell in high volumes.
3. mychoice explained that their supplier had begun 'brand support' for the Rangemaster range of products on 1 January, which meant that until such time as mychoice hit a certain turnover threshold for that range of products, the supplier would charge them a discounted price. mychoice said they were therefore able to offer the products to consumers at a discounted price until such time as they hit the threshold. They said they had expected to meet the threshold by the end of February and therefore had planned to end the sale on 29 February. However, they had not met the threshold by that date and were therefore able to continue to offer the sale price for a further month. They provided a copy of the minutes of an internal meeting, held on 28 February, which appeared to show that the decision to extend the sale was taken that day. They also provided e-mails which showed that on 28 March they had almost reached the threshold and would be considering whether to raise prices the following day. They said there was no intention to mislead consumers or to restrict the opportunity for consumers to make an informed choice about purchasing the product.
4. mychoice provided a copy of an e-mail from the manufacturers of New World appliances, in which they explained the process that customers must follow in order to claim the free item, and stated "this is the consumer promo that you can offer on your site". A copy of the relevant redemption form was attached to the e-mail. mychoice said the e-mail demonstrated that they were entitled to run the promotion.
5. mychoice said that a promotional prompt banner was placed on all qualifying New World product pages, and a PDF of the claim form could be accessed by clicking on the banner. They later added that there was a tool tip next to the promotion prompt, which brought up text that stated "Buy a New World electric oven and hob and receive a FREE matching Morphy Richards Accents kettle or toaster at mychoice". mychoice said the claim form also clearly stated that customers must purchase both a hob and an electric oven to qualify for the offer. They said the link to the claim form, in addition to the tool tip, meant that consumers did not have to leave the product page to view the details of the offer and the terms of the offer were therefore clear. They said they had not received any other complaints about the way in which the offer was advertised.
Assessment
1. Upheld
The ASA acknowledged that each product page included links to further details about mychoice's delivery services, via the tool tip and pop-up box, which included information that made clear that customers in some areas of the UK and in the Republic of Ireland would not be eligible for free delivery. However, we considered the claim "Free delivery on all purchases!" was an absolute claim, which was likely to be understood to mean that all purchases would be delivered for free regardless of delivery location. We considered that the information in the tool tip and pop-up box and on the "Delivery Information" web page therefore contradicted, rather than clarified, the claim. Because delivery was not free on all purchases, to all locations, we concluded the claim was misleading.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification).
2. Upheld
We noted that mychoice's price lists for November 2011 and January 2012 showed that the product had first been offered for sale on their website at the "was" price of £2063 in November 2011, and that the price was reduced to £1739 in January 2012. However, we also noted that the product had never been sold at the "was" price. We considered consumers would understand the "was" price to be the price at which the product had previously been sold by mychoice, and the "Now" price to be a short-term price which was a discount on the price at which the product had previously been sold by mychoice. We acknowledged that the product was unlikely to have high sales, due to the factors highlighted by mychoice, but considered that the sale was not a genuine sale, because the "Now" price was not a genuinely discounted price. We concluded the price and savings claims were misleading.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. (Prices).
3. Upheld
We noted mychoice's explanation as to why the sale was extended for a further month, and acknowledged that the sale period corresponded with the period during which the supplier's brand support was in place for the range of products. We understood, however, that mychoice could not have had a clear idea as to when they would meet the turnover threshold and in theory could therefore have continued to extend the availability of the sale price indefinitely. We considered that, because the product was advertised as being on sale for a limited time period but the sale was then extended, the claim "Sale Ends 29 Feb" misleadingly implied that consumers would have to act quickly to take advantage of the "Sale" price when that was not the case. We concluded that the claim "Sale Ends 29 Feb" was misleading.
Investigated under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices),
3.31
3.31
Marketing communications must not falsely claim that the marketer is about to cease trading or move premises. They must not falsely state that a product, or the terms on which it is offered, will be available only for a very limited time to deprive consumers of the time or opportunity to make an informed choice.
(Availability) and
8.17.4
8.17.4
Closing date
(Significant Conditions for Promotions).
4. Not upheld
We understood the complainant had challenged the claim because they understood that mychoice.co.uk was an internet retailer and, according to the terms and conditions stated on the promotion's redemption form, the offer was not available to customers who had purchased a hob and electric oven through an internet retailer. We noted, however, that the e-mail from the manufacturer specifically stated that the promotion could be offered on mychoice's website. Because we understood that mychoice's customers were able to take advantage of the promotion, we concluded the ad was not misleading in that regard.
On this point, we investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) but did not find it in breach.
5. Upheld
We noted that text at the top of the product page stated "New World Electric Oven and Hob Promotion" but considered that did not make clear that customers must purchase both a New World hob and electric oven in order to qualify for the promotion. We also noted mychoice had said that the promotion's redemption form could be accessed by clicking on the promotional banner below the product image, and that text detailing the requirement to purchase both an oven and a hob appeared as a tool tip when hovering over the question mark icon. However, it was unclear as to whether those features were in place at the time the complainant viewed the ad.
We considered that, whether or not the redemption form was linked to the promotional banner at the time the complainant viewed the ad, and whether or not text detailing the offer appeared when the mouse pointer was hovered over a specific icon on the web page, the condition that customers must purchase both a New World hob and electric oven in order to qualify for the promotion was a significant condition which should have been made clear on the relevant product pages, and which should have appeared at all times. Because that was not the case, we concluded the ad was misleading.
The ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification).
Action
The ad must not appear again in its current form. We told mychoice not to use claims which stated or implied that delivery was free to all customers if that was not the case. We told them that, where they quoted "was" prices for products, they must hold documentary evidence to demonstrate that the products had previously been sold at those prices. We also told mychoice they should not extend sales beyond the original end date and to ensure that all significant conditions of promotions were stated in their ads.
CAP Code (Edition 12)
3.1 3.17 3.3 3.31 3.7 3.9 8.17.4
