Background

Summary of Council decision:

Two issues were investigated, of which one was Upheld and one was Not upheld.

Ad description

A radio ad and a website for car retailer Unbeatablecar.com:

a. The radio ad, heard on 21 August 2017, included a voice-over that said that Unbeatablecar.com was “the South’s biggest car supermarket with hundreds of RAC approved cars”.

b. The home page of www.unbeatablecar.com, seen on 14 September, included under the subheading “Hot Deals”, a list of cars and the amount that customers could save, beneath the price of each vehicle. Below these savings claims, text stated, “Savings against list price when new”.

Issue

Imperial Cars of Swanwick challenged whether:

1. the claim that Unbeatablecar.com was “the South’s biggest car supermarket” in ad (a) was misleading and could be substantiated; and

2. the claimed savings, which were based on a comparison between the price of a used car against the list price when new, in ad (b), were misleading.

Response

1. PG Motors Ltd t/a Unbeatablecar.com said they had used the tag lines “The South’s Biggest Car Supermarket” and “The South’s Largest Car Supermarket” in their marketing for a number of years. They said that in order for their marketing to be accurate they regularly audited their competitors in the south to determine whether the marketing tag line was correct and when any ads were aired where they made the claim of being the largest or biggest in the south, they refreshed their research to ensure the statements they proposed to use were what consumers would consider as accurate.

They said they measured the claims to be the “biggest” or “largest” based on the land size of their premises and the capacity to display vehicles for sale. They measured their claim to be a “supermarket” based on the number of vehicle manufacturers they stocked. They ruled out recording and using the claimed stock level at each dealer as the basis of a comparison because dealership stock was fluid and could change significantly over a matter of weeks, leading to data being out-of-date as soon as it was compiled. They also said that many dealers stored stock off-site, had group stock or had vehicles in refurbishment centres which would not be accessible to customers. Unbeatablecar.com argued that a dealer could own and advertise a huge number of vehicles but have very small premises with a limited number of vehicles displayed for sale.

In respect of the area which they referred to as “the South” they said they were not able to find definitive evidence as to what was “the South”. They claimed, in respect of the ad, the definition was based on how the target audience of two radio stations they advertised with would understand it. The radio stations they advertised on were Wave (Hampshire listeners) and Heart FM (Hampshire and West Sussex listeners). The areas Unbeatablecar.com included in their definition were South London, Kent, Sussex, Surrey, Berkshire, Hampshire, Wiltshire, Somerset, Dorset, Devon, Cornwall and Bristol.

Based on that definition of “the South”, Unbeatablecar.com provided three tables ranking the top ten car supermarkets on acreage, range of manufacturers and display capacity. That list included Unbeatablecar.com’s showrooms in Crawley and Portsmouth. On the list their Crawley branch was ranked number one in respect of its acreage, display capacity and its manufacturer range. Its showroom in Portsmouth was second, based on acreage and manufacturer range and third for display capacity.

Radiocentre said they checked the validity of the claim prior to clearance and did not feel it was inaccurate.

2. Unbeatablecar.com said that many of the vehicles they sold were often pre-registered or nearly new with very low mileage and represented a substantial reduction in cost against the original purchase price when sold new. They said it would be difficult for customers to find that information themselves.

Unbeatablecar.com said that they used pricing information provided by the car valuation service cap-hpi. Each vehicle’s specification, including any fitted extras, was individually checked by a member of their staff and given a reference code by cap-hpi so they could calculate the cost, which enabled them to recall accurately the price “of each vehicle when new”. The cap-hpi code was then validated against data provided by the DVLA to reduce the chance of human error and ensure the information was as accurate as possible.

Assessment

1.Upheld

The ASA considered that consumers would understand the claim "the South’s biggest car supermarket" to mean that Unbeatablecar.com was the largest in the South of England in terms of the number of vehicles they had on show across their entire product range and had the largest market share compared with other car supermarkets in that area of the country. We also considered that while there was no official definition, consumers would have a broad understanding as to where “the South” referred to.

We acknowledged that Unbeatablecar.com had compared their product volumes with four of their competitors based on acreage, display capacity and range of manufacturers. However, while we understood that the ad was broadcast to a limited population based in the South of England, we did not consider Unbeatablecar.com’s interpretation of “the South” would be how consumers would understand it. It excluded a number of areas that consumers were likely to understand as in the south such as North London and Essex. Therefore, because Unbeatablecar.com had not compared all car supermarkets in the South as it was likely to be broadly understood we concluded that the claim had not been substantiated and was misleading.

The ad breached BCAP Code rules  3.1 3.1 The standards objectives, insofar as they relate to advertising, include:

a) that persons under the age of 18 are protected;

b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;

c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;

d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;

e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;

f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];

g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"

Section  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.  2).
 (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  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  (Comparisons with Identifiable Competitors).

2. Not upheld

The CAP Code required that ads made the basis of a price comparison clear. The ASA noted that the claim "Savings against list price when new" appeared immediately below the savings claims.

We considered the information was presented sufficiently clearly for readers to understand the basis of the price comparison and to understand that the "Save" figure referred to the difference between the price of the car when originally new and the current market value of a used car. Because we considered the basis of the price comparison was sufficiently clear, we concluded that the savings claims were unlikely to mislead.

We investigated under CAP Code (Edition 12) rules  3.1 3.1 The standards objectives, insofar as they relate to advertising, include:

a) that persons under the age of 18 are protected;

b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;

c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;

d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;

e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;

f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];

g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"

Section  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.  2).
 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),  3.1 3.1 The standards objectives, insofar as they relate to advertising, include:

a) that persons under the age of 18 are protected;

b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;

c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;

d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;

e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;

f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];

g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"

Section  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.  2).
  (Prices) and  3.39 3.39 Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises.
 (Price comparisons), but did not find it in breach.

Action

The ad must not appear again in its current form. We told Unbeatablecar.com to ensure that they held documentary evidence to support their claims and not to imply that they were the biggest car supermarket in the South of England in the absence of evidence to demonstrate that was the case.

BCAP Code

3.1     3.33     3.9    

CAP Code (Edition 12)

3.1     3.17     3.3     3.39    


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