Ad description
A TV ad, website and leaflet seen in March 2011 promoted Tesco.
a. The TV ad showed a range of products available at Tesco. The female voice-over stated "At Tesco, we understand times are tough, so we've lowered over 1,000 prices right across the store ... And you can now check the price of your shop at Tesco Price Check and if you find your comparable grocery shopping cheaper at Asda, we'll happily refund double the difference ...". On-screen text stated "Tesco Price Check includes comparable grocery shopping only. This should cover at least half of your shopping. Comparisons include Asda promotions. Price checked online daily. Double the difference refund claims must be made within 28 days using printable voucher. Excludes multi-buys, non-matches, Express & selected Metros. ... Full terms and conditions see [website address]".
b. The Tesco Price Check website stated "We'll check the price of your comparable grocery shopping versus ASDA and then send you an email when we have your results. Of course we're confident you will find your shopping cheaper at Tesco, but if not, we'll refund double the difference". Text in the "FAQ" section of the website stated "Is there a maximum amount a voucher will be valid for? We operate a fair use policy to prevent abuse. As such the maximum value for an individual Price Check Voucher is limited to £20".
c. The leaflet stated "... To compare your grocery shopping follow the steps below 1 Purchase your shopping from a Tesco Store* and keep the receipt 2 Visit [website address] 3 Click on 'Check my shopping' 4 Choose to check a Tesco store receipt -Enter the numbers at the bottom of your receipt and your email address -You will receive an email within 36 hours with a link to your comparison results -Click on this link to see whether or not your shopping was cheaper than Asda -In the unlikely event that Tesco was not cheaper than Asda, we will give you a voucher for double the difference ...". The small print at the bottom of the page stated " ... Terms and conditions apply. Visit [website address]".
Issue
Fifteen people complained.
1. Thirteen viewers challenged whether ad (a) was misleading, because it did not make clear that the maximum value for an individual Price Check Voucher was limited to £20.
2. Two complainants challenged whether ad (c) was misleading for the same reason.
3. Two complainants challenged whether the fair-use policy stated in the "FAQ" section of the Price Check website contradicted the home-page claim "Of course we're confident you will find your shopping cheaper at Tesco, but if not, we'll refund double the difference".
Response
Clearcast responded to point (1) only. They said that when they cleared ad (a) there was no maximum value for an individual Price Check voucher. They said that if they had known that Tesco were planning to introduce the £20 limit, they would have advised them to add a message to ad (a) explaining what the change was and when it was going to come into effect. Clearcast said that at the time the ad was presented to them for clearing, they did not believe that it was misleading.
Tesco did not believe that any of the ads were misleading. They confirmed that a £20 limit was introduced on 24 March. However, they said the overwhelming majority of users of the Price Check scheme were not affected by the £20 limit. They submitted a table showing the number of Price Check requests made by customers between 20 June and 18 July. The table also showed the number of requests that were affected by the £20 limit.
Tesco pointed out that the highest number of transactions affected by the £20 limit in any one day during this period represented just over 1% of the total Price Check requests for that day. Tesco pointed out that on all other days during this period the number of transactions affected by the £20 limit was less than 1%. They also pointed out that during this entire period (20 June to 18 July) the percentage of transactions affected by the £20 limit was just 0.28% of the total Price Check requests.
Tesco therefore believed that it was reasonable not to include the £20 restriction in the terms and conditions for the Price Check scheme because the overwhelming majority of their customers were not affected by it and therefore it could not be considered a significant condition. They also believed that the fair-use policy did not contradict ad (b) because they said that the majority of their customers had been able to take advantage of the offer.
Tesco said that the £20 limit was introduced on 24 March to stop customers from "tactically shopping" in order to take advantage of the offer in a way that disadvantaged other shoppers. They said the offer was obviously only viable for genuine shopping baskets but that tactical shoppers threatened its commercial viability and therefore also their ability to continue to offer it to genuine customers.
Notwithstanding this Tesco said they were keen to ensure that their marketing communications were clear, fair and transparent and therefore even though they considered that it went beyond their requirements under the Code, they made it clear in the terms and conditions on their subsequent TV and press ads that a £20 limit applied to the Price Check offer.
Tesco said that on the day following the introduction of the £20 limit, the number of requests above £20 fell by almost 50%, despite the total number of transactions rising. They believed this demonstrated that reference to the £20 limit in the terms and conditions for the promotion, even when not included on the actual ad itself, had been effective.
Tesco also stated that the information submitted did not represent individual unique customers, but individual transactions. They said that during the entire period covered by the information submitted the average number of transactions per customer was just over three. They also asserted that this did not include customers who may have used multiple e-mail addresses to avoid detection.
For these reasons Tesco did not consider that it was necessary to include the £20 limit in the ads.
Assessment
1., 2. & 3. Upheld
The ASA noted the table submitted by Tesco covering the period from 30 June to 18 July. We also noted that the promotion began in March and that most of the complaints we received were in March. We therefore requested similar data to that provided for the entire promotional period. Tesco supplied data from the beginning of the promotion on 1 March to 19 June.
We noted that on 29 April the nature of the promotion changed to the effect that Tesco would pay the difference between the price of shopping at Tesco and Asda (as opposed to double the difference). We noted that after this date the number of Price Check requests and the number of transactions affected by the £20 limit dropped significantly. We therefore considered that the best evidence to consider in relation to the complaints we had received was the data covering the period before 29 April.
We noted that the data initially submitted by Tesco showed that between 20 June and 18 July the percentage of total Price Check requests that were affected by the £20 limit was less than 0.3%. However, we also noted that the additional information we requested showed the percentage of total Price Check requests that were affected by the £20 limit from the beginning of the promotion until the limit was introduced was over 7.5% of the total requests. Furthermore, we noted that the percentage of total Price Check requests that were affected by the £20 limit, from the beginning of the promotion to 29 April, was over 8.5%.
We noted that Tesco believed that the insertion of the £20 limit into the terms and conditions was effective in notifying customers of the limit, even though it was not stated explicitly in the ads themselves, and that this was demonstrated by a sharp drop of around 50% in Price Check requests above £20 on the day after the limit was introduced. However, we also noted that the number of Price Check requests above £20 began to rise again after this date and that it soon returned to the pre-limit level.
We therefore considered that inserting the £20 limit in the terms and conditions but not in the ads themselves had not made it sufficiently clear that there was a limit because the data demonstrated that the percentage of total Price Check requests affected by the £20 limit continued to rise after this date.
We noted that Tesco said that tactical shoppers had threatened the viability of the offer. However, we also noted that we saw no evidence that this was the case. Furthermore, we considered that if it had been the case Tesco could have taken more timely action to alert consumers to the introduction of the £20 limit in order to avoid disappointment.
We considered that the £20 limit was a significant restriction likely to affect the average consumer's decision to shop at Tesco during the promotional period. Because the restriction was not included in ads (a) and (c) we concluded that they were misleading. Because the restriction was only found in the fair-use policy for ad (b) we concluded that the terms and conditions contradicted rather than clarified the headline claim and therefore that ad (b) was also misleading.
Ad (a) 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) and
3.10
3.10
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification).
Ads (b) and (c) breached CAP Code (Edition12) rules
3.1
3.1
Advertisements 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
3.9
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
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification).
Action
Ad (a) must not be broadcast again.
Ads (b) and (c) must not be used again in their current form.
We told Tesco to ensure that particularly significant conditions were included in the main body of their advertising.
