Background

 Summaary of Council decision:

Two issues were investigated, both of which were Upheld.

Ad description

A teleshopping ad for a 2.25 carat diamond 9 K Gold Tomas Rae ring showed a presenter comparing the item to several other products. She said that her research showed products that were "as close" as she "could get". She said, "2 carat, diamond, crossover ring, that's what I typed in … this is my research … I promise you I have sat for an hour. I couldn't find anything … do your research, this is just my hour, an hour though is a long time when you're looking for something … an hour's a long time." She also said, "I have spent a lot of time trying to find something that was closer to what we could do, not just on price but in detail, and I couldn't get it, I couldn't find it." The product was compared to a 0.5 carat diamond ring priced at £1,250, a 1.5 carat diamond ring at £982.05 and a 1.14 carat diamond ring at £3,940. The start price for the product was £6,304. This was subsequently dropped to £899. The presenter did not speak initially and looked around in shock. The price was then dropped to £799 and again, the presenter appeared shocked that the price had been reduced. She listed the prices and carats of the comparable products again. She said, "£3,940, £1,250 for half a carat … you'll get a certification for this piece, two and a quarter carats … the closest price I could find in terms of pricing was nine hundred and something but that was nowhere near the design detail … Can I just remind you this is two and a quarter carats?" The price then dropped to £599 and the remaining items were all sold.

Issue

The complainant challenged whether the ad was misleading because:

1. she believed the products compared were not of the same overall quality; and

2. the starting price of £6,304 was misleading and exaggerated the value of the ring.

Response

1. The Genuine Gemstone Company Ltd t/a Gems TV pointed out that the presenter said she was comparing "design" and "detail", and was trying to show the similarity in the cross-over design rather than make a like-for-like comparison between the items. However, they recognised that the images and prices of the similar items might have caused ambiguity and some viewers might have interpreted the presentation as a direct comparison between the products. They said they had gone through the footage with the presenter and explained the rationale of the complaint to her. They said further price comparisons of this kind would not be presented in the future and presenters would be required to obtain sign-off from senior colleagues if they wanted to make price comparisons. They said the requirement would be made clear to presenters in training sessions.

2. Gems TV said they used a reverse auction format in which a starting price of a product fell throughout the game. They explained that the starting price of their items was determined by them and did not reflect the market value of the products. They said their terms and conditions stated "Starting price (falling from price) … Keep in mind that the starting price in any TV game is merely the price that we have selected to initiate the TV game and does not necessarily represent the fair market value, suggested retail price or other generally used or accepted selling price for the item(s). Prices quoted are subject to terms and conditions of sale". They pointed out that the presenter did not refer to the ring being worth £6,304 and the on-screen text stated "Now at" at the start of the auction, and did not refer to "worth" or "value".

Assessment

1. Upheld

The ASA noted that the presenter said that the items shown were "as close" as she "could get" and that she had spent over an hour searching for similar items online. We considered that viewers were likely to interpret the presenter showing products with a similar design, in conjunction with details of her search for "close" similar items, to represent a close comparison with the product being sold, in terms of, for example, the quality of the diamonds, the gold and gold weight and the jewellery brand. We also considered that viewers were likely to infer from the presenter's emphasis on quality, and the several references to "carats", to mean the compared products were of a similar quality. Although we noted that the presenter specifically referred to similarity between the "design" and "detail" of rings, we considered that the ad gave the overall impression that the rings were directly comparable. Because we had not seen evidence that that was the case, we considered that the basis of the comparison was not sufficiently clear, and concluded that the ad was misleading.

On that 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),  3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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),  3.18 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.  (Prices) and  3.39 3.39 Advertisements that include a price comparison must make the basis of the comparison clear.  (Price Comparisons).

2. Upheld

The ASA understood that Gems TV worked on a reverse auction model, which meant the price started at its highest point and then reduced during the presentation, with all purchasers paying the final price for the product. We acknowledged that Gems TV was entitled to set a starting price for its reverse auctions providing they did not mislead. However, we noted that the initial price claim stated "NOW AT £6,304" and considered that implied that £6,304 was an amount at which Gems TV expected to sell the ring. We therefore considered that viewers were likely to understand the price to be materially related to the usual retail price or a valuation that consumers could expect for the ring. Because Gems TV had not demonstrated that that was the case, we concluded that the ad was misleading.

On that 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),  3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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  3.18 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.  (Prices).

Action

The ad must not be broadcast again in its current form. We told Gems TV to make the basis of their price comparisons sufficiently clear and to only use prices that they could substantiate as being related to the genuine retail price or value of the product being advertised.

BCAP Code

3.1     3.18     3.2     3.39     3.9    


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