Ad description
A radio ad for The Trade Centre Wales Ltd stated "... all our cars are from £1,999 to £3,999 ... remember, at Trade Centre Wales part-exchange outlet in Merthyr, all cars are from £1,999 to £3,999, £1,999 to £3,999 ..."
Issue
The complainant challenged whether the claims that all cars were from £1,999 to £3,999 were misleading and could be substantiated, because when he had visited the branch he had found that no cars were available for £1,999 and many were priced at above £3,999.
Response
The Trade Centre Wales Ltd (TCW) responded that cars were always available at £1,999 on the Merthyr Tydfil site and that around the time of the complainant's visit there were at least two vehicles at that price. They provided copies of invoices dating from the preceding two months which showed that a number of vehicles had been sold at or below £1,999, sometimes after the application of a discount; those included invoices relating to the sale of two vehicles priced at £1,999 shortly after the complaint was received by the ASA. They also provided the purchase documents for those two vehicles, which showed they had been bought before the complainant's visit to the outlet. They said the complainant was factually in error in his understanding that no cars had been available at £1,999 at the time of his visit.
TCW said approximately 180 vehicles were offered for sale at their premises at any given time, and sent a copy of a stocklist. They confirmed that, whilst their stock at the Merthyr Tydfil site predominantly comprised vehicles within the £1,999‒£3,999 range, they sometimes held additional vehicles priced at above £3,999. They said a proportion of those vehicles were discounted at the point of sale to below £3,999. They considered that the presence of vehicles priced at above £3,999 on the site was not relevant, because there were sufficient quantities of cars priced at £3,999 to ensure that consumers wishing to purchase at the upper end of the stated price range were able to do so.
They stated that they were aware of the importance of supplying a reasonable quantity of vehicles at the lowest advertised price in order to avoid falling within the prohibited practice of bait advertising under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and, following discussions with their local Trading Standards department, had been careful to maintain their sales records in order to demonstrate compliance. They said advice from Trading Standards had indicated that only a court would be able to judge the number of vehicles required to be on sale at the advertised prices in order to substantiate the claim. They pointed out that they had held and sold some vehicles for £1,999 or less in the January‒March 2013 period.
TCW further noted that stock levels could vary from day to day, but said if no cars were priced at £1,999 they would make higher-priced vehicles available at £1,999 by applying a discount, and therefore considered that they had reasonable grounds for believing they could always satisfy demand. They stated that for several years they had advertised in print, on the radio and on TV that vehicles were available within certain price ranges and had not received any complaints or adverse comments from customers. They stressed that there were always vehicles available on-site to be sold at the advertised prices. They stated that, after receiving advice from Trading Standards, they had ensured that at least one item would be available at the lower price stated in the range. They therefore considered that the ad was not misleading.
The Radio Advertising Clearance Centre (RACC) said they had been running the claim for several years without complaint and took the statement in good faith. They passed on a response they had received from the advertiser after being made aware of the complaint. That stated that the term "all cars from £1,999 to £3,999" implied just that, and whilst they could prove that they did sell many cars at £1,999, on some days they might be unable to present vehicles at that price because of issues with stock availability. However, cars would remain on offer between £1,999 and £3,999. The response further noted that, while TCW's stock and marketing messages were predominantly focused on cars within the stated price range, they would at any given time hold additional vehicles priced at above £3,999, which no customer was forced to buy.
Assessment
Upheld
The ASA considered that the claim "... all our cars are from £1,999 to £3,999", which we noted was repeated several times in the ad, implied that all cars at TCW's Merthyr outlet would be priced at between £1,999 and £3,999. The complainant reported not having been able to find any cars for sale at £1,999 during his visit, and a number which were more than £3,999. We considered that, in order for the claim not to mislead consumers, TCW would need to demonstrate that all cars at the Merthyr outlet were priced within the stated range, and that the reference to cars "from £1,999" did not exaggerate the availability of cars at that price.
We understood that TCW did sell some cars for more than £3,999. We acknowledged TCW's view that a sufficient number of vehicles were available within the stated price range to ensure that consumers visiting the site after having heard the ad were presented with the opportunity to purchase a car at or below £3,999, but we did not agree that the presence of cars priced at above £3,999 was irrelevant to the question of whether the ad was likely to mislead. We considered that consumers who chose to visit the outlet after having heard the ad would expect the maximum price listed for any car to be £3,999, whereas in fact TCW did not specialise exclusively in cars within the stated price range. Whilst we noted that a proportion of vehicles priced at above £3,999 would be discounted at the point of sale to below that threshold, we nevertheless considered that consumers would understand the claim to mean that no cars at the outlet would be priced at more than £3,999. Because that was not the case, we considered that the ad was misleading.
We further considered that, even if all cars at the outlet were priced at between £1,999 and £3,999, TCW would need to demonstrate a sufficient level of availability of cars at the lowest "from" price in order to ensure that the claim did not mislead. We considered that what would constitute a sufficient level of availability would be less than in a business selling new cars because consumers would understand the greater potential for variation in incoming stock levels. However, in the absence of any qualification in the ad to the effect that it might not always be possible to supply a range of vehicles at the "from" price, consumers would nevertheless expect TCW to always offer a certain number of cars at £1,999. That number would depend on the typical stock levels across all prices at the outlet.
We noted that the invoices provided in support of the claim demonstrated the sale of four cars priced at £1,999 in January and February 2013, two of which had been sold in the days following the complainant's visit to the site; other cars had been discounted to £1,999 at the point of sale. As stated above, we considered that the claim related to the listed prices for the products and therefore invoices showing vehicles discounted to £1,999 upon purchase were not relevant indications of the availability of cars at the "from" price. The other four invoices did demonstrate that four cars had been sold for their advertised price of £1,999 in January and February 2013, and the purchase documents showed that two of those were in TCW's possession at the time of the complainant's visit to the site. However, we noted from TCW's response that around 180 vehicles would be offered for sale at any given time. The stocklist provided (which post-dated the complaint) contained details of approximately 400 vehicles, seven of which were listed at £1,999. We considered that offering only two, or even seven, cars at the lowest stated price, in the context of typical stock levels of between 180 and 400 cars, was unlikely to be sufficient to meet the expectation consumers would draw from the claim "... from £1,999 to £3,999".
Because we considered that the repeated claim "... all our cars are from £1,999 to £3,999" implied that the Merthyr outlet of TCW stocked only cars priced within that range when that was not the case, and because we had not seen evidence that they stocked a sufficient number of cars at the stated "from" price in order to ensure that that price did not exaggerate the availability of the cars on offer, we concluded that the claim was misleading.
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),
3.10
3.10
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) 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.
and
3.24
3.24
Price claims such as "up to" and "from" must not exaggerate the availability or amount of benefits likely to be obtained by consumers.
(Prices).
Action
The ad must not be broadcast again in its current form.
