Background
Summary of Council decision:
Two issues were investigation, both of which were Not upheld.
Ad description
An in-store leaflet featured a range of promotional products that was headlined "Italian. Half Price Weekend Offers 01.0.3.14 & 02.03.14 only". The ad included an image of minced beef in a bowl and the text "STRATHVALE Fresh Beef Mince 500g 20p/100g £2 Per Pack [with the "£2" crossed out] £1 Half Price Offer!". Small print at the bottom of the ad included "A maximum 6 per customer ... all offers subject to availability".
Issue
The complainant, who visited the store on the first morning of the promotion and found the product was out of stock, challenged:
1. the availability of the product; and
2. whether the claim "A maximum 6 per customer" was misleading because he was told that customers were limited to three items each.
Response
Lidl UK GmbH said that when planning events such as these, they would evaluate all stores in advance and look at sales data including previous sales performances. They said they would use this information to plan stock of promotional items in their stores. They said there was no formula that could produce exact sales figures, but their predicted sales were generally relatively accurate. They explained that the store where the complainant had tried to purchase the minced beef had not been part of the previous similar promotion and so no previous sales data were available on which to base the anticipated response and therefore the amount of stock required. They explained that they therefore based stock numbers on those of the previous minced beef promotion for a store (in the same geographical area) which had a very similar turnover and where stock had been left over at the end of trading on the Sunday. They provided an example spreadsheet detailing the sales of the minced beef at 94 of their similar stores for the previous promotion, which included the sales for the store in which the stock for the complainant's local store was based. They also provided the sales data for the previous promotion for all stores as well as the sales data for the sales promotion that was the subject of this investigation. They said stock levels for each store were amended based on the responses to the previous sales promotion.
They accepted that the number of allocations to the complainant's store had been over 100 units lower than those allocated to a similar store, but said that due to staff changes, they were unable to explain why there had been such a difference between stock levels. They provided an hour by hour breakdown of sales for the complainant's local store which stated that between the hours of 8 am and 10 am on the Saturday, 398 units of minced beef had been sold and that following a stock replenishment on the Sunday, 143 units were sold within the first hour of trading.
They explained that throughout the promotion (at most stores) a high number of sales occurred within the first few hours of trading each day and that it was a common pattern because customers were keen to ensure they took full advantage of the reduced price. They said that when planning stock levels they needed to ensure that stock was available for the remainder of a promotion without leaving high volumes that would have to be discarded and that, in a more recent promotion for the minced beef, they had increased stock levels to 1276 for the complainant's store, but found that over 300 units were left.
2. They disputed that sales were restricted to three per person and stated that the 'six pack per customer' limit referenced in the ad was accurate. They provided a spreadsheet of sales receipts for the day on which the complainant had reported that the staff were restricting sales, which they believed demonstrated that until stock ran out, the store was selling up to six packs of minced beef per customer.
Assessment
1. Not upheld
The ASA noted evidence demonstrated that Lidl stores across the country had been allocated units of the minced beef based on the responses to a previous similar promotion for the same product. Lidl had acknowledged that there had been a discrepancy of over 100 units between the similar store (upon which the predicted units for the complainant's store was based) and the complainant's local store and considered this was likely to have contributed to the fact the complainant was unable to take advantage of the offer despite visiting the store within two hours of its opening. However, 227 units of the minced beef were sold within the first hour of trading on the Saturday, with a further 171 units in the following hour and that this far exceeded the sales of all of the similar stores for the previous promotion. We therefore considered that Lidl could not have predicted such an unprecedented response within those opening hours and that, notwithstanding the error in allocation numbers, had made a reasonable estimate of stock for that specific store.
In order to establish whether or not Lidl had made a reasonable estimate of stock across the promotion more generally, we examined a spreadsheet of sales data for the proceeding minced beef promotion (for all stores) which demonstrated that in approximately 36% of stores, there had been stock left over (sometimes in significant quantities) after the promotion ended. The same data showed that approximately 28% of stores sold out of the promotional product on the second and final day of the promotion after 3pm (which in many instances was several hours before early Sunday closing) and that the final (approximately) 36% of stock sold before 3 pm.
Whilst the percentage of stores that sold of mince beef before 3pm on the Sunday increased slightly in the actual promotion that was the subject of the complaint, in the majority of instances stock only sold out in the final four hours of the promotion (or remained unsold) and we therefore considered that Lidl had made a reasonable estimate of demand for the promotion more generally.
In conclusion, whilst errors resulted in the complainant's store holding less stock than it should have done, we considered that Lidl could not have predicted the response rate in that store. Furthermore, based on sales data on Lidl stores more generally, we considered that it had taken into account the response to the previous promotion and that for the sales promotion in question, Lidl had made a reasonable estimation of the stock that was needed to meet demand.
On this point we investigated the ad under CAP Code (Edition 12) rule 8.9 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. (Sales promotions), but did not find it in breach.
2. Not upheld
Whilst we understood the complainant reported that staff at their local store was restricting sales at the store, sales receipts demonstrated that whilst stock was still available at the store, six packs per customer were consistently being sold. We therefore considered the six-pack restriction stated in the ad was not misleading.
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. (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.
Action
No further action required.
