Background
Summary of Council decision:
Six issues were investigated, of which three were Not upheld and three were Upheld.
Ad description
A two-page national press ad was headed "wren KITCHENS & BEDROOMS sale". The first page stated, "UP TO 80% OFF KITCHEN CABINETS BOSCH DISHWASHERS*". Four photographs on this page showed examples of the offers. The first photograph was captioned with the text, "80% OFF. WAS £7,502. NOW £2,213. including dishwasher. CREAM GLOSS COMPLETE KITCHEN INCLUDING ALL APPLIANCES, HANDLES, WORKTOPS, SINK & TAP ‡".
The second page of the ad was headed, "WE'LL BEAT ANY QUOTE. HURRY! 7 DAYS LEFT. 60% OFF ALL BEDROOMS & FREE 32" LED TVs*". Text at the foot of the second page stated, "VISIT US ONLINE AT wrenkitchens.com". Smaller text underneath this read, "Up to 80% applies to clearance ranges only. Half price plus an extra 20% off or 60% plus an extra 20% off applies to Autograph, Handleless, Pacrylic, Trio & Traditional cabinets only when you buy 3 or more cabinets. 60% off bedrooms offer applies when you buy 2 or more cabinets. 80% off Bosch Dishwashers & Free 32" TV minimum spend applies. Not available with packages ... ‡ Price does not include props, small worktop appliances, bed, bedding or accessories".
Issue
B&Q plc challenged whether:
1. the qualifying text linked to the headline claims was presented clearly;
2. the condition that the "up to 80% off kitchen cabinets" offer only applied to specific ranges when the consumer purchased three or more cabinets was sufficiently prominent;
3. the conditions that the "60% off all bedrooms" offer only applied when two or more cabinets were purchased was sufficiently prominent;
4. the "Free 32" LED TV" offer was sufficiently qualified, because it did not state the amount of the minimum spend required in order to avail of the offer;
5. the examples of the kitchen offer were misleading; and
6. the claim "Hurry only 7 days left" was misleading because the promotion continued beyond seven days from the ad being published.
Response
1. 2. & 3. Wren Kitchens Ltd (Wren) said the fact that there was further qualification to both of the claims, "up to 80% off kitchen cabinets and Bosch dishwashers" and "60% off all bedrooms and free 32" LED TVs" was identified through the use of an asterisk after each claim. Furthermore, the qualifying text was situated at the bottom of the ad, in a section that contained other important information, where Wren felt a reader would expect it to be. Wren said the average consumer reading the entire ad, from a standard reading distance and at a reasonable speed, could not fail to see the footnote in which the qualifications were contained and, if sufficiently interested, to read it. They felt that the print, although necessarily small due to the limitation of space, was perfectly legible.
In addition, Wren explained that the qualification relating to "specific ranges" did not apply to the "up to 80% off kitchen cabinets and Bosch dishwashers" offer. The qualification related to another offer that Wren was running at the same time but which did not feature in the current ad. Wren had published a uniform qualification footnote in every ad published during the time of the ad, promoting its various offers to the public.
Notwithstanding that the qualification could not have been insufficiently prominent, because it did not apply to the offer contained in the ad, Wren believed the "up to" reference in the headline claim made it clear that the "80% off" offer did not apply to all of their products.
Furthermore, had the qualification applied to the headline offer, Wren believed it would have been sufficiently prominent: it was not hidden away but in a clear and prominent position and linked to the headline claim via an asterisk, which alerted consumers to the information.
4. Wren acknowledged that the qualification was simply stated as "minimum spend applies". They considered that was sufficiently clear and asserted that just pointing out the existence of a minimum spend without specifying the "spend" required was common practice.
5. Wren pointed out that the photographs containing examples of kitchen offers appeared under the main headline, "up to 80% off kitchen cabinets and Bosch dishwashers*". The left-hand corner of the photographs stated "80% off". There was also a statement of the price the kitchen was sold at and the promotional price. Across the bottom of each photograph was the statement, "complete kitchen including all appliances, worktops, sinks and taps".
Wren believed the average consumer would understand that: the "up to 80% off" offer related to "kitchen cabinets and Bosch dishwashers" and not to other appliances, worktops, sinks and taps; the "80% off" reference on the corner of each photograph referenced the headline claim; each of the example kitchens featured in the photographs included other appliances, worktops, handles, sinks and taps and did not merely consist of cabinets and a Bosch dishwasher; and the price indicated across the top right-hand corner of the photographs would not show an exact 80% reduction on the original price, because only the price of the cabinets and the Bosch dishwasher was reduced by 80%, not the price of the other items.
Furthermore Wren said that the price that a customer would pay for the example kitchens was absolutely clear.
6. Wren said the "January Sale" ran from 26 December 2012 to 4 February 2013 and within that period they ran a series of promotions and periodically freshened up its offers by altering the promoted offers. The specific offers that featured in the ad ended on 2 January 2013 and were replaced by the following offers, "80% off kitchen cabinets and an appliance package" and "60% off bedrooms and a free hotel safe". Because the offer that featured in the ad ended on 2 February, 7 days after the ad was published, Wren did not consider the claim, "Hurry only 7 days left" to be misleading.
Wren added that the kitchen packages of the "80% off offer" were, in any event, of limited availability and the offer in respect of any particular package or model of kitchen involved in the promotion could have ended at any time, if stock expired.
Wren asserted that the claim that the offer had 7 days left to run was true, but said that even if the offer had continued to run, the statement would not have the effect of depriving consumers of the time or opportunity to make an informed choice, as consumers would still of had seven days to shop around.
Assessment
1. Not upheld
The ASA noted the footnote containing the qualifying text was linked to the headline claims by means of an asterisk and was underneath text that read "VISIT US ONLINE AT wrenkitchens.com". We considered that the text was clear enough for it to be sufficiently legible to the average consumer viewing the ad from a normal reading distance and reading at a normal speed. We therefore concluded that the ad had not breached the Code on this point.
On this point we investigated the ad under CAP Code (Edition 12) rule
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification) but did not find it in breach.
2. Not upheld
We understood from Wren's response that the qualification regarding the exclusion of certain ranges related to a different promotion, which was not mentioned in the ad. We therefore considered that the exclusion could not be insufficiently prominent, as it did not apply.
On this point we investigated 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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification), and
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
(Significant conditions for promotions) but did not find it in breach.
3. Not upheld
The claim "60% off all bedrooms" claim was linked, via an asterisk, to the footnote, which stated, "applies when you buy 2 or more cabinets". Although that was a significant qualification we considered it was sufficiently prominent because the headline claim was clearly signposted to the footnote. Furthermore, because the claim referred to "bedrooms", consumers were likely to understand that the offer did not apply to every individual item in the bedroom department and that some minimum order amount applied. For those reasons we concluded that the ad did not breach the Code on this point.
On this point we investigated 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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification), and
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
(Significant conditions for promotions) but did not find it in breach.
4. Upheld
We considered the amount of the minimum spend was important information that should have been included in the ad. Although the ad made clear that a minimum spend applied, it should also have stated how much this was. Because it did not, we concluded that it breached the Code.
On this 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.
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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification), and
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
(Significant conditions for promotions).
5. Upheld
We noted Wren's response, that consumers would understand the "80% off" claims on the corner of the photographs related to the "up to 80% off" main claim. However, because the text on the corner of the photographs did not repeat the "up to" part of the claim, we considered consumers would infer that they represented the actual savings of the example kitchens presented. Furthermore, we noted one of the photographs stated, "70% off". The actual savings represented by the examples ranged from 53% to 70%, therefore, notwithstanding that the promotional prices were also displayed, we considered that the "80% off" and "70% off" claims exaggerated the actual savings available.
On this 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),
3.17
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
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
(Significant conditions for promotions).
6. Upheld
The promotion featuring "60% off all bedrooms plus free 32" LED TV" and "Up to 80% off kitchen cabinets and Bosch dishwashers" ran from 26 December to 2 January. We noted that the ad, as seen on 27 December, stated "HURRY! 7 DAYS LEFT". We understood that the next offer, which featured, "60% off all bedrooms plus free hotel safe" and "Up to 80% off kitchen cabinets and appliance packages", started on 4 January and ended on 9 January. We also understood that the 'original' offer ran again for at least four days in January. We also understood that a subsequent offer featuring "60% off all bedrooms" and "Up to 80% off kitchen cabinets and Bosch dishwashers", started on 1 February and ended on 4 February.
Because we understood the main elements of the offer, those most likely to be attractive to consumers, i.e. the discounts on kitchens and bedrooms, were available just two days after the promotion 'ended' albeit in a slightly different form, and again at the end of the month in exactly the same form, and again in another slightly different form in February, we considered that the claim, "HURRY! 7 DAYS LEFT!" in the ad was misleading because it implied that consumers had only seven days to avail of the offers before they were withdrawn. We therefore concluded that the ad was misleading.
On this 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.
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),
3.31
3.31
Marketing communications must not falsely claim that the marketer is about to cease trading or move premises. They must not falsely state that a product, or the terms on which it is offered, will be available only for a very limited time to deprive consumers of the time or opportunity to make an informed choice.
(Availability),
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
and 8.17.4.e (Significant conditions for promotions).
Action
The ad must not appear again in its current form.
CAP Code (Edition 12)
3.1 3.10 3.17 3.23 3.3 3.31 3.9 8.17.1 8.17.4e
