Background

Ad description

Claims on www.amazon.co.uk, relating to delivery charges for an electronic product sold by AmazonBasics, seen on 21 July 2015:

a. The search listing included the product name, the seller name and the price (£18.49) on the left-hand side of the listing. To the right-hand side, under a star rating, text stated “Eligible for FREE UK Delivery”.

b. The product page stated the product name and seller, and text which included “Price: £18.49 & FREE Delivery in the UK on orders over £20. Details … Dispatched from and sold by Amazon”.

Issue

The complainant challenged whether the ads were misleading, because they did not make:

1. the delivery charges for the item sufficiently clear; and

2. sufficiently clear the terms under which the item would be eligible for free delivery. The complainant believed he qualified for free delivery after adding to his basket a second product, which was described as including “FREE UK delivery”, and which took the order above £20. However, the total cost of the order at checkout still included a delivery charge for the first item.

Response

1. Amazon said that the text in ad (b) (the product page), “FREE Delivery in the UK on orders over £20. Details”, set out the delivery charges for the item in the event that the customer qualified for their “FREE Delivery” delivery option, and the full range of delivery options and charges were presented on a web page, titled “About FREE Delivery”, which was accessed through the linked text “Details”. They said that page explained how customers could qualify for free delivery and which items were eligible and ineligible: “Orders including £10 or more of eligible books qualify for FREE Delivery. All orders of £20 or more of eligible items across any product category also qualify for FREE Delivery”. A table set out eligible and ineligible items. Eligible items were “Items sold and fulfilled by Amazon” and “Items sold by Marketplace Sellers but Fulfilled by Amazon”. Ineligible items were “Gift cards” and “Items sold and fulfilled by Marketplace Sellers”.

For customers whose orders did not qualify for free delivery, Amazon had added text underneath the eligibility table on the “About FREE Delivery” page which stated “If your order doesn’t qualify for FREE Delivery, see Delivery Rates and Options for more information on delivery costs”. Clicking on the linked text “Delivery Rates and Options” took customers to a page on which they could consider the various delivery options offered for items dispatched by Amazon, including Standard Delivery.

Amazon said it was impossible to state the actual delivery charge on any given product page because customers were offered a range of delivery options which had different charges (including for example: delivery within three to five business days after dispatch; one to two business days after dispatch; by 10pm the same day as the order; pickup delivery). Those charges could also be affected by other factors, including: whether the customer was a Prime member and therefore had access to multiple delivery options at no additional cost; the delivery destination, because not all delivery options were available to every destination in the UK, or on every day of the week for commercial addresses, and because different items within the same order could be delivered to different destinations; the type of product, because heavy or bulky items had fewer delivery options available, age-restricted products required age verification on delivery, certain products were not eligible for Prime delivery options, products in certain categories attracted different delivery fees or qualified for free delivery at a lower minimum spend threshold than £20, and items sold by Marketplace Sellers that were not fulfilled by Amazon were subject to the Seller’s own delivery options and charges; and the total value of the basket.

Consumers who added a product to their basket could visit the ‘Basket’ page to view the estimated cost of delivery for that product. Amazon said they were only able to calculate the estimated cost of delivery for individual items in advance, rather than provide a definite cost, because there was a distinction between: the estimated cost of delivery based on the products in the basket at any particular time, which might be added to or removed from the basket while the customer was shopping; and when customers decided to go through the checkout process and gave Amazon all the information needed to confirm the cost of delivery before buying one or more products from Amazon and/or Marketplace Sellers.

They said all those variables meant they did not state a specific delivery charge alongside the price of each item; they believed it would be misleading to consumers to display an estimated delivery charge on search listings and product pages because that charge could change prior to completion of a purchase due to the variables involved. Amazon further highlighted that applicable delivery charges were displayed at the final stage of the checkout process, before consumers confirmed payment for their order.

2. Amazon understood that the second product the complainant added to his basket was dispatched from and sold by a Marketplace Seller who did not charge for delivery of that product. They highlighted that the product page therefore stated “FREE UK delivery”; they considered the delivery charge was clear and that it did not depend on any eligibility or other criteria. They said the “About FREE Delivery” page referenced above made clear that products not dispatched by Amazon were not eligible for “FREE Delivery” and therefore did not count towards the minimum thresholds required to be eligible for “FREE Delivery”.

Assessment

1. Not upheld

Ad (a) (the search listing for the product) stated the price of the product and that it was “Eligible for FREE UK Delivery”. The ASA considered consumers would understand that claim to mean that a delivery charge would be applied to the product but that in some circumstances that charge might be waived. On clicking through to the product page, ad (b), consumers were presented with the claim “Price: £18.49 & FREE Delivery in the UK on orders over £20. Details …”. We considered consumers would understand that claim to mean that a delivery charge would normally be applied to the product, but that if they purchased additional products to bring the order total above £20 they would not be charged for delivery of any of the items in that order.

The CAP Code rules on misleading advertising and pricing required that ads must not mislead consumers by omitting material information, and stated that, for ads which quoted prices for advertised products, material information included delivery charges. The Code provided that, if delivery charges could not reasonably be calculated in advance, ads must state that such charges were payable.

We noted that the process for determining which delivery options were available to Amazon customers was complex and dependent on a range of factors, including whether they were a Prime customer, the type and combination of products they were purchasing and whether those products were fulfilled and dispatched by Amazon or a Marketplace Seller, and whether they wanted all items delivered to the same address. We considered that as such the delivery charge for individual products, or baskets of products, could not reasonably be calculated in advance and therefore it was not required that the ads state the applicable delivery charges. Instead, the ads must state that such charges were payable.

We understood that Amazon had a Primary Authority relationship with Hertfordshire Trading Standards Service, whom we consulted for their view. They agreed that the range of delivery options offered by Amazon meant the charge could not reasonably be calculated in advance and considered that the ads made sufficiently clear to consumers that delivery charges may apply.

As noted above, we considered consumers would understand from both the search listing and product page that a delivery charge applied to the product, unless their order met certain criteria. Because the ads made clear that a delivery charge would be payable (unless certain criteria were met) we concluded the ads were not misleading and did not breach the Code.

We investigated the ads under CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.    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.    3.4 3.4 For marketing communications that quote prices for advertised products, material information [for the purposes of rule 3.3] includes:  and  3.4.4 3.4.4 delivery charges  (Misleading advertising), and  3.20 3.20 Marketing communications that state prices must also state applicable delivery, freight or postal charges or, if those cannot reasonably be calculated in advance, state that such charges are payable.  (Prices), but did not find them in breach.

2. Upheld

As referenced above, we considered consumers would understand the claim “Eligible for FREE UK Delivery” in ad (a) to mean that a delivery charge would be applied to the product but that in some circumstances that charge might be waived, and the claim “FREE Delivery in the UK on orders over £20. Details …” in ad (b) to mean that a delivery charge would normally be applied to the product, but that if they purchased additional products to bring the order total above £20 they would not be charged for delivery of any of the items in that order. The text “Details” hyperlinked to the “About FREE Delivery” web page which provided information about which products were eligible for that offer of free delivery. However, because the claim “FREE Delivery in the UK on orders over £20” implied that any order over £20 would qualify for free delivery in the UK when that was not the case we considered the claim was misleading, and that the qualifications to the offer presented on the “About FREE Delivery” web page contradicted rather than clarified the claim they qualified.

The search listing for the second product the complainant added to his basket did not include information about the delivery cost. The product page for that product stated “FREE UK delivery”, which we considered consumers would understand to mean that there would be no cost associated with having that product delivered.

The terminology used by Amazon to describe their offer to provide free delivery on products sold and/or fulfilled by Amazon, such as that in ads (a) and (b), was “Eligible for FREE UK Delivery” and “FREE Delivery in the UK on orders over £20”. The terminology was very similar to that used to describe free delivery for items sold and fulfilled by a Marketplace Seller, such as the second item chosen by the complainant: “FREE UK delivery”. We considered that even those consumers who had already selected an item which was eligible for “FREE Delivery in the UK on orders over £20” and who had clicked through to the “About FREE Delivery” page to view the eligibility information were likely to be confused by the similar terminology used in search listings and on product pages to describe free delivery for both eligible and ineligible items. As such we considered that consumers who had first viewed ads (a) and/or (b) would, whether or not they had clicked through to the eligibility information on the “About FREE Delivery” page, expect that the cost of an item marked “FREE UK delivery”, such as the second item chosen by the complainant, would count towards the offer of free delivery on orders over £20.

We further noted that the product page for the second item chosen by the complainant did not include a link to the “About FREE Delivery” page and therefore the eligibility requirements were not easily accessible to consumers visiting the product pages of products sold and fulfilled by Marketplace Sellers.

We concluded the ads did not make sufficiently clear which items were eligible for free delivery, and under what terms, and that they were therefore misleading.

The ads breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.    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.    3.4 3.4 For marketing communications that quote prices for advertised products, material information [for the purposes of rule 3.3] includes:  and  3.4.4 3.4.4 delivery charges  (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.  and  3.10 3.10 Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.  (Qualification).

Action

The ads must not appear again in the form complained about. We told Amazon Europe Core Sarl to ensure that, where items were eligible for free delivery, the claims used to communicate that did not mislead consumers as to the terms under which their order would qualify for free delivery. We also told them to ensure that qualifications to the offers of free delivery clarified, rather than contradicted, the claims they were intended to qualify.

CAP Code (Edition 12)

3.1     3.10     3.17     3.20     3.3     3.4     3.4.4     3.9    

---

More on

• Sports, leisure and hobbies

---