Background
Summary of Council decision:
Two issues were investigated, one of which was Upheld and the other Not upheld.
Ad description
A TV and a press ad for tablets and e-Readers:
a. A TV ad for PC World featured various tablets and e-Readers. The voice-over stated “At Currys PC World, get up to £80 Cashback on tablets and e-readers when you buy a case too”. At the same time there was also a large bauble that displayed text that stated “up to £80 Cashback”. On-screen text also stated “Conditions apply. Excludes Ipad”.
An image of a Blackberry Playbook then appeared on screen along with two price bubbles that stated “£119” and “after £10 Cashback”. At the bottom of the screen text stated “£129 payable in store plus cost of case. Make your Cashback claim between Day 30 & 60. See [website]”. A voice-over then stated, “This Blackberry Playbook has a massive 64 GB hard drive, buy the playbook with a case and £10 Cashback makes it £119.”
An image of a Google Nexus then appeared on screen along with two price bubbles that stated “£179” and “after £20 Cashback”. At the bottom of the screen text stated “199 payable in store plus cost of case. Make your Cashback claim between Day 30 & 60. See [website]”. A voice-over then stated, “This Blackberry Playbook has a massive 64 GB hard drive, buy the playbook with a case and £10 Cashback makes it £119.” A voice-over then stated, “The new 32 GB Google Nexus Offers outstanding graphics. Buy the Nexus with a case and £20 cashback makes it £179.”
An image of a Samsung Note then appeared on screen along with two price bubbles that stated “£319” and “after £80 Cashback”. At the bottom of the screen text stated “£399 payable in store plus cost of case. Make your Cashback claim between Day 30 & 60. See [website]”. A voice-over then stated, “The amazingly powerful Samsung Note multi tasks like a PC. Buy the Note with a case and £80 cashback makes it £319. At Currys PC World.”
b. The press stated “up to £80 Cashback on tablets and eReaders when you buy any case”. The ad featured a number of devices which detailed the price of the item “after cashback”.
The ad included an image of a Kindle. Text stated “£10 Cashback* 6” eReader The new Kindle features built in Wi-Fi allowing you to download a book in 60 seconds and weights less than 170grams. £59 AFTER CASHBACK* £69 payable in store + cost of case”. Text at the bottom of the ad stated “*when you buy a case”. The ad also included a box, which include the text “the largest range of tablet and eReader cases on the high Street From only £9.99”.
Issue
1. Two complainants challenged whether ad (a) was misleading because it did not make clear the extent of the consumers’ commitment in order to obtain the advertised discounts.
2. One complainant challenged whether the ad (b) was misleading for the same reason.
Response
DSG Retail Ltd (DSG) said that by definition, a ‘misleading advert’ must be one that created a false impression and that an ad could not be considered misleading by not including a piece of information that a consumer may wish to know. They believed the absence of such information would only cause an ad to be misleading if it subsequently created a false impression and believed a case for a false impression had not been set out by the ASA. They further stated that the common usage of “misleading” should be taken into account and that there were no circumstances under which it could be considered to mean “lacking in detail”, “not clear” or similar. They also believed it was permissible (under the Code) for an ad to feature a product or service about which a customer would need to find out more before deciding whether or not to make a purchase. In the case of a tablet (or e-Reader) they said such information included screen size, memory capacity, operating systems, dimensions, weight, guarantee duration, payment terms, pre-loaded software, apps/software availability, connectivity and competitor’s prices, and so on. They said that in the context of their ads and the featured cashback, another item of information a consumer may wish to find out was the cost of the case because the ad made it very clear that the cashback was conditional on purchasing a case. They said there were no restrictions on which case a consumer had to buy and that the case cost would therefore vary depending on the consumer’s choice. They understood there was no suggestion that the cost of their cases were different to market prices or consumer’s expectation of what a case would cost or that the complainant’s chose not to take advantage of the offer because they found the cost of the case to be too high, because they were unable to find a case that was to their liking or that the range of cases were too restrictive. They believed the lack of restriction here was a positive element of this offer for consumers with cases ranging in price from less than £10 to more than £100. They said the test within the BCAP Code was not whether an ad could (or should) have been more clear (or whether it was unclear) but whether the ad was misleading. They said in relation to the TV ad it was clear that: 1. a case would need to be purchased in order to obtain the cashback offer; 2. the ad did not specify a case cost; and 3. it was clear the total transaction cost would become known at a later stage. They said the ad was therefore not of the type that would reasonably lead to a consumer making a decision as to whether to buy the products (tablet + case) so as to take advantage of the offer (the cashback). They said that if there were customers who were not prepared to find out more and move onto that later stage, then this was a loss for DSG but did not constitute a breach of the BCAP Code because there was no consumer detriment.
They said the offer was not a “minimum spend” conditional offer in the normal sense of that phrase and that it was normally used to signify that some of the items (of the type where there was necessity to purchase) were excluded. They said no exclusion applied to this offer. They said whilst it was possible to identify the cheapest case that DSG sold, by that logic all conditional purchase offers were “minimum spend” offers. They said it was unfair to characterise and judge the advertised offer by this reference.
They stated that with regard to BCAP Code rule 3.23 the TV ad specifically stated “the extent of the commitment” clearly by stating that a case needed to be purchased and because it was dictated by the customer’s choice of case and because of the wide range of cases and prices, the precise cost could not be known.
Assessment
1. Upheld
The ASA considered that an ad did not need to contain false information or create a ‘false impression’ in order for it to be misleading and that it should be considered misleading if it omitted significant information about the featured offer that would affect a consumer's informed decision about whether or how to buy the product. We considered that consumers would understand from ad (a) that the price reduction claim made for each offer was in relation to the amount of cashback that would be received, upon application, having bought the device at the full price along with a case. We considered the ad made clear that the cashback offer was dependent upon viewers purchasing the device plus a case. Despite there being cases at various prices, we noted there was no obligation for consumers to buy a more expensive case in order to take advantage of the cashback offer and that, given the range of prices, it would not be feasible to include all of potential amounts consumers could spend and also take advantage of the offer. However, because the ad featured a price claim and the cashback offer was based on a minimum spend (on device and the cheapest available case), we considered the Code rule relating to prices which states “if the price of one product or service depends on another, advertisements must make clear the extent of the commitment consumers must make to obtain the advertised price” applied in this case and that the “extent of the commitment” included the financial commitment. We therefore considered that a “from” price for a case should have been included in the ad to make clear the total extent of the financial commitment needed in order to receive the cashback offer. We considered that, without this information, ad (a) contained insufficient information about the minimum financial commitment upon which the cashback offer was based to allow consumers to make an informed decision about whether or how to buy the product. We concluded that the ad was misleading by omission.
On this point the ad breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Misleading advertising),
3.18
3.18
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product or service depicted in the advertisement.
and
3.23
3.23
If the price of one product or service depends on another, advertisements must make clear the extent of the commitment consumers must make to obtain the advertised price.
(Prices).
2. Not upheld
The ASA considered that an ad did not need to contain false information or create a ‘false impression’ in order for it to be misleading and that it should be considered misleading if it omitted significant information about the featured offer which would affect a consumers informed decisions in relation to a product. We considered that consumers would understand from ad (b) that the price reduction claim made for each offer related to the amount of cashback that would be received, upon application, having bought the device at the full price along with a case. We considered the ad made clear that the cashback offer was dependent upon consumers purchasing the device plus a case. We considered the Code rule relating to prices which states “if the price of one product or service depends on another, advertisements must make clear the extent of the commitment consumers must make to obtain the advertised price” applied in this case and that the “extent of the commitment” included the financial commitment. Because ad (b) also included text which stated "The largest range of tablet and eReader cases on the high street from only £9.99". We noted in this case that consumers were supplied with sufficient information to establish the minimum total financial commitment necessary to obtain the cash back offer and, on that basis, to make an informed decision in relation to a product. We therefore concluded that the ad was not misleading.
On this point we investigated the ad under CAP Code rule
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
3.3 (Misleading advertising),
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Prices) but did not find it in breach.
Action
Ad (a) should not appear again its current form.
