Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two website ads for Victoria Plum, an online bathroom retailer, on www.victoriaplum.com, and a sponsored search ad:
a. The website, seen on 25 September 2015, featured a product page for a “Drift Sawn Oak 2 Door Floor Mounted Unit & Basin”. The price of the product was stated as “£199 Was £299 YOU SAVE £100”.
b. The website, seen on 8 October 2015, featured a web page about careers at the retailer, which included the claim “We are the UK’s No 1 online bathroom retailer”.
c. The sponsored search ad, seen on 8 October 2015, included the claim “The Official Site of the UK’s Leading Bathroom Retailer”.
Issue
The ASA received two complaints:
1. A member of the public, who had recently received a brochure from Victoria Plum which stated the price of the product in ad (a) as £169, challenged whether the price and savings claim “£199 Was £299 YOU SAVE £100” in ad (a) was misleading and could be substantiated; and
2. Victorian Plumbing Ltd challenged whether the claim “… the UK’s No 1 online bathroom retailer” in ad (b) and the claim “the UK’s Leading Bathroom Retailer” in ad (c) were misleading and could be substantiated.
Response
1. Victoria Plum Ltd t/a VictoriaPlum.com said the brochure received by the complainant was first circulated on 24 July and at that time the price of £169 stated in the brochure was correct. They said the terms and conditions in the brochure stated that its prices were valid up to and including 31 July 2015.
They said the “was” price in ad (a) of £299 was the advertised price of the product for 27 consecutive days from 28 August to 23 September 2015, and that the price was changed to £199, as stated in ad (a), on 24 September and that it remained at that price until 24 November. They later provided a pricing history which showed the “was” price of £299 had applied from 28 August to 22 September (a period of 26 days), and that the price of £199 had applied from 23 September to 21 November. They confirmed that no one had purchased the product while it was priced at £299.
Victoria Plum said they were aware that the BIS Pricing Practices Guide (PPG) required a product to be price-established for at least 28 days and therefore the price establishment for the product was not in line with that guidance. That was due to an administrative error resulting in the price being changed one day early.
2. Victoria Plum said the claims were based on them having the highest turnover of bathroom retailers in the UK which operated only online. To substantiate the claim they provided a copy of their audited accounts for the year up to March 2014, and copies of the audited accounts, as lodged with Companies House, of two competitors who they identified as the largest along with themselves. They had identified those competitors based on the volume of Google searches in the year up to October 2015, for individual bathroom retailers by name, using data from a third-party company that measured trends in search behaviour. Victoria Plum said the accounts showed their turnover was the highest, by around £16 million more than their closest competitor. They acknowledged that their competitors’ accounts related to more recent time periods than their own (the years up to April 2014 and October 2014 respectively) but said that their next filed accounts, for the year up to March 2015, would show that their turnover had increased by over 30% from the previous year. Therefore, if they calculated their turnover over a period more comparable to the filed accounts of their competitors, their turnover would be shown to be even higher.
Victoria Plum said they considered the claim was also substantiated by the volume of consumers who searched for their company on Google compared to the volume of searches for their competitors in the year up to October 2015. Compared with the two competitor companies referenced above, there were nearly 2 million more searches for Victoria Plum than for their closest competitor. Victoria Plum said they understood those two companies were their closest competitors because, combined with Victoria Plum, searches for the three companies amounted to 48.6% of the traffic, the next highest number of searches was for a bathroom retailer which did not operate exclusively online, and the next four combined accounted for 19.3% of traffic.
Assessment
1. Upheld
The ASA noted Victoria Plum’s reference to the PPG. While we took that into account, we assessed whether the ad breached the Code.
We considered consumers were likely to understand the claim “£199 Was £299 YOU SAVE £100” to represent a genuine saving against the usual selling price of the product at the time the ad appeared. We noted that the product had been offered for purchase at £299 for 26 days immediately before the promotion but we noted from the advertiser’s pricing history that during the majority of the three months prior to that, it had been offered for purchase at either £135 or £169. We considered that, because the product had been available for significantly less than £299 for three of the four months leading up to the promotion, and for at least three times as long as it had been available at the higher price referenced in the ad, it was reasonable to assume that £299 was not the usual selling price for the product at the time the ad was seen. We also noted that no one had purchased the product while it was available at £299, which we considered further indicated that it was not the usual selling price. We therefore considered that the savings claim did not represent a genuine saving against the usual selling price. We concluded the savings claim had not been substantiated and that the ad breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 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) and 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. (Prices).
2. Upheld
We considered both claims would generally be interpreted by consumers as comparative claims relating to market share in terms of turnover. However, the claim as it appeared in the sponsored search (ad (c)) was accompanied by the claims “8.7 Customer Trust Score. 1,000,000+ Customers. Up to 25 Year Guarantees”. In that context we considered some consumers might therefore interpret the claim to relate to the quality of service provided by Victoria Plum compared to its competitors. We also considered that neither claim made sufficiently clear the basis of the comparison being made. “The UK’s No 1 online bathroom retailer” was ambiguous as to whether the comparison related to retailers which operated exclusively online, or to retailers which operated both online and in shops/showroom. Both claims were ambiguous as to whether the comparisons were being made with retailers which only sold bathroom furniture and accessories or which also sold other products. We concluded that the claims “the UK’s No 1 online bathroom retailer” and “the UK’s Leading Bathroom Retailer” were likely to mislead consumers, because they did not make clear the basis of the comparison.
We understood from Victoria Plum’s response that they intended the claims to be understood as comparisons relating to the turnover of UK retailers which only sold bathroom furniture and accessories, and which operated exclusively online. We noted they had provided evidence relating to the turnover of only two competitors they had identified on that basis. However, we considered the information relating to the number of Google searches for named companies was not sufficient to establish that no other competitors should have been included in the comparison. We also understood that both competitors had showrooms and therefore did not operate exclusively online. We noted we had therefore not seen evidence which related to competitors that operated only online. We concluded that neither the evidence relating to turnover nor the information relating to online search volumes supported the comparisons as Victoria Plum had intended them to be understood.
On that point ads (b) and (c) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 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), and 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with Identifiable Competitors).
Action
Ads (a), (b) and (c) must not appear again in their current form. We told Victoria Plum Ltd to ensure that future savings claims did not mislead in relation to the benefit available. We also told them to ensure that comparative claims were clear as to the basis of the comparison and that they held suitable evidence to support that comparison.
