Background
Summary of Council decision:
Four issues were investigated, of which three were Not upheld and one was Upheld.
Ad description
A poster, and claims and a video on www.morrisons.com promoted Morrisons' "I'm Cheaper" campaign:
a. The poster featured an apple with an "I'M cheaper" sticker on it. Text alongside the image stated "I'M your new cheaper Morrisons".
b. Text on the "I'm Cheaper" page of www.morrisons.com stated "Over 100 more price cuts This is the start of a new cheaper Morrisons. We've cut the prices on over a thousand of your favourite products. Not temporary reductions or supermarket smoke and mirrors, these are new every day low prices on the things you buy every week. So you'll notice the difference with every shop ... Look out for the yellow markers when you shop in store and online in morrisons.com. If it says I'm cheaper you know its staying cheaper".
The "I'm Cheaper" page also included a video entitled "I'M your new cheaper Morrisons" providing more information about the new campaign. It featured the Chief Executive, Dalton Philips, who stated "We're reducing 1,200 items across the store. Permanent price reductions. And it's part of a plan that we've been on since March where we've been taking specific categories and reducing the prices permanently".
The Morrisons online shop listed a number of items including "Morrisons Double Cream 600ml" with an "I'M cheaper" logo next to it. When a consumer clicked on the "Quick view" a pop-up gave more information about the product. Under the heading "Description" text stated "Was £1.10 Higher Price Charged Before 1st May 2014".
Issue
Sainsbury's challenged whether:
1. the comparative claim "I'M cheaper", in ad (a) was misleading as the ad did not make clear the basis of the claim;
2. ad (a) was misleading, because it did not compare the current and previous selling price of the item;
3. ad (b) was misleading, because it did not compare the current and previous selling price of the "Morrisons Double Cream", and other items included in "I'M Cheaper" promotion; and
4. the claims in ad (b), "We've cut the prices on over a thousand of your favourite products" and "We're reducing 1,200 prices across the store", were misleading and could be substantiated, as they understood that was not the case.
Response
Wm Morrison Supermarkets plc (Morrisons) stated that in March 2014 they announced their "I'm cheaper" campaign. They said it had been widely reported in the media and advertised extensively to make sure that the public understood the message that they were reducing the price of over 1,000 items. They provided examples of their ads used to promote the campaign. They explained that against that background, they produced a limited number of ads that did not include a detailed explanation due to the constraints of the medium. Information was not required to qualify those statements, but it was made available elsewhere, where customers would see it before making any purchase.
1. Morrisons said the primary message of the advertising campaign was "We've cut the everyday price of over a thousand products ...", which was repeated on their advertising and publicity material. In addition, the "I'm cheaper" logo was both the campaign symbol and the means by which they identified the products that were included.
They said the poster, featuring a generic green apple, was intended only to promote or maintain awareness of the campaign. The main message on the poster was to highlight their new cheaper prices and the apple was included as an incidental icon to give consumers an indication of how they might identify "I'm Cheaper" products in stores.
They believed the ad was not misleading, as the claim "I'm Cheaper" was true, regardless of whether or not consumers understood it as a comparison with Morrisons' own previous prices, or as a comparison with their competitors' prices. They said as part of the campaign they had reduced the price of green apples (both Granny Smith and Golden Delicious) significantly and having checked, could confirm that they were selling them cheaper than any competitor. They also provided evidence to show that was the case.
2. & 3. Morrisons re-iterated that ad (a) was used to promote awareness of the "I'm cheaper" campaign more generally, and they used the apple as an icon for the campaign. They said press and online ads also generally included further explanatory text such as "We've cut the everyday price of over a thousand products ...". Similarly, they said they included full pricing information in ads featuring specifically identified products and also displayed previous and current prices at the shelf-edge in store using the same "I'm Cheaper" logos. They provided examples of a selection of ads including those stating previous and current prices.
In relation to ad (b), Morrisons highlighted that the product had been marked with the "I'm Cheaper" logo and had a "Quick View" click-through button which displayed the detailed product information and stated "Was £1.68 Higher Price Charged Before 1st May 2014". They said the current price of £1.60 was clearly displayed next to the product. They also explained that the omission of the higher "was" prices from the product listing screen was due to the limitations of their online shop web platform, as opposed to any deliberate attempt to mislead on their part.
4. Morrisons stated that they had reduced the price of 1,250 products in their range for the launch of the "I'm Cheaper" campaign. They provided a spreadsheet listing all the products that were reduced in price and their previous prices. They explained that for various reasons, such as customer preference, store size and space, they didn't stock every product line in each store or sales channel, but they sought to ensure that an average supermarket store would stock over 1,000 of the "I'm Cheaper" lines and built in a contingency in the numbers they quoted to allow for products which became unavailable. Hence, in their marketing material, they consistently referred to "over 1,000" price cuts.
They explained that they had processes in place to remove the "I'm Cheaper" message from products when it was no longer appropriate to refer to the previous price, such as if there was a further price cut in response to competitor activity, or where the passage of time or individual circumstances no longer justified a reference to the last higher price. Therefore, the number of products identified in stores or on the online website by use of the "I'm Cheaper" logo had naturally changed as time passed.
Assessment
1. Not upheld
We considered that most consumers viewing the ad would, in the context of the headline claim "I'M your new cheaper Morrisons", understand that Morrisons had reduced the cost of a number of products, and that the "I'm Cheaper" claim, which appeared on the apple, indicated that apples were an example of one such item that was now cheaper in comparison to their previous price. We also noted from the evidence provided that as a result of their "I'm Cheaper" campaign, Morrisons had cut the price of a number of products, including a selection of green apples. Because we considered that consumers would understand from the context of the ad that the claim related to Morrisons' own previous prices, we concluded that the basis of the claim was clear and that it was not misleading.
On that point, we investigated ad (a) under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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), 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.
2. Not upheld
As stated in point 1 above, we considered that most consumers viewing the ad would understand the "I'M Cheaper" claim to relate to Morrisons' own previous prices, as opposed to their competitors' prices. We noted the text "I'M your new cheaper Morrisons" and that the featured apple was not branded or labelled in any way beyond the "I'M Cheaper" sticker. In that context, we considered that consumers would understand that the ad served to promote Morrisons' recent price reductions and that the apple shown was a generic example of the type of products included in their "I'M Cheaper" campaign. We noted that Morrisons had provided evidence to show that they had reduced the price of thousands of goods across their stores, including a selection of green apples.
Because we considered consumers would recognise the apple featured as representative of a number of products that had been reduced as part of the "I'M Cheaper" campaign, we considered that the previous and current selling price of the product did not constitute material information, and concluded that the omission of that information did not render the ad misleading.
On that point, we investigated ad (a) under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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), 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.
3. Upheld
We noted that the ad was a product listing on the Morrisons' online shop, that the initial listing simply stated the product's current price, and that a consumer could add the product to their basket without being aware of, or viewing, the additional information regarding its price history on the "Quick view" pop-up. We also noted that all those items that had been reduced in price as a result of the "I'M Cheaper" campaign were accompanied with an "I'M Cheaper" graphic. We considered that consumers viewing the listing would understand that the item was included in the "I'm Cheaper" campaign, and had previously been offered at a higher price. Having reviewed the product information supplied, however, we understood that the price difference of the goods varied substantially, with some as low as 1p. We appreciated that the product in question, Morrisons double cream, had been reduced by 8p, and that even small savings could have an impact on a shop, particularly when buying a number of items. We had concerns, however, that by displaying only the current selling price and the "I'M Cheaper" logo, in the absence of the previous selling price on the listing too, consumers might believe that an item had been reduced by a greater amount than was the case, and be encouraged to purchase an item believing a reduction to be more significant than it was. In light of that concern we considered that the previous selling price of the product was not sufficiently prominent and concluded that the ad was misleading.
On that point, the ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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),
3.17
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), 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).
4. Not upheld
We reviewed the data provided and noted that when the ads appeared, Morrisons had reduced the prices of 1,250 items. We also understood that the number of items available in individual stores varied due to factors such as space limitations and customer preference. Similarly, we understood that the number of items included in the campaign might fluctuate if items were discontinued or prices reduced further because of competitor price changes, and hence removed from the campaign. We considered that consumers would understand the claims to mean that Morrisons had reduced the cost of 1,200 items across their stores, but would not necessarily anticipate that they would be able to buy every single item included in the campaign from their local store or through the online shop. Because Morrisons were able to show that they had reduced the cost of over 1,250 items as a result of their "I'M Cheaper" campaign, we concluded that the claims were not misleading.
On that point, we investigated ad (b) under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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), 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
Ad (b) must not appear again in its current form. We told Wm Morrison Supermarkets plc to ensure that their previous selling price for reduced items were sufficiently prominent in future.
