Background

Summary of Council decision:

Four issues were investigated, of which two were Not upheld and two were Upheld.

Ad description

A press ad and the website www.relish.net, promoted a broadband company:

a. The press ad stated "Get fibre-fast broadband, fast. Delivered to your home or office in central London, next working day, from just £20 per month". Small print stated "Please visit our website to see if our service is available in your area".

b. The "At home" page of the website included a table headed "This is how we compare to other home broadband providers". The table compared Relish to four other home broadband providers. One comparator product selected was BT's "Unlimited BT Infinity 2" package and the fixed line rental cost was listed as "£16.75/month". Small print below the comparison table stated "This data is up to date as of June 3rd 2014" and "These calculations are based on an unlimited package with a comparable download speed. This includes the providers [sic] monthly broadband charge, line rental and installation fees for the first 12 month period of their contract".

Issue

BT challenged whether:

1. the claim "Delivered to your home or office in central London" in ad (a) was misleading and could be substantiated, because they understood that the service was in fact not available in a number of central London locations;

2. the claim "From just £20 a month" in ad (a) was misleading and could be substantiated, because they understood that the price for business broadband started at £25 per month;

3. the same claim in ad (a) was misleading and could be substantiated, because they understood that there was an upfront device cost of £50 for non-business customers signing up to the one month plan; and

4. the comparison with BT in ad (b) was misleading, because it included an incorrect line rental price, featured the most expensive BT package and did not explain the differences between the packages.

Response

1. UK Broadband Ltd t/a Relish stated that their broadband service was supplied over their 4G LTE wireless network. They provided a map showing the Relish network coverage area for London, and explained that they covered 27,775 London postcodes. While they acknowledged that, like all wireless networks, the quality of the service in terms of speed and capacity varied according to the distance of the customer from the nearest transmitter, they highlighted that the service was available in 96% of their coverage area.

Relish said, in their view, the area covered by their network could reasonably be described as "central London", as it covered the majority of zone one, together with areas within zone two. While they highlighted that there was no formal boundary defining zone one, taking the outermost Underground stations within zone one, they said they covered over 90% of all postcodes in that area.

They highlighted that the ad included footnote text that invited prospective customers to visit the Relish website to ascertain whether the service was available in their area. They believed that the footnote text clarified the reference to "central London" and that consumers would therefore understand that Relish's coverage did not extend to the whole of zone one. They also believed that their potential customers would understand that a radio based service, such as Relish, would not reach all locations within central London due to attenuation factors in a city environment. They also highlighted that they provided a coverage checker on the Relish website for customers to check the service availability in their area.

They said it was, and remained, necessary to provide some detail in the ad as to the general area that the Relish service was available. They said the alternative to referring to "central London" was to simply state "London". However, they felt that could be construed as misleading as it arguably denoted an area larger than "central London". Equally, to say nothing about the general location in which the service was available could leave consumers confused as to where in the country they could use the Relish service.

2. Relish stated that the claim was factually correct, in that their services started at £20 a month. They said at the bottom of the ad they alerted customers to the full details of the Relish price plans which were also clearly set out on their website. They did not believe that it was a requirement to specifically refer to the fact that different packages were available for "business customers" and that it was sufficient to refer customers to the Relish site where the price plans were set out. They highlighted that the ad had appeared in mainstream, as opposed to trade, press and so was clearly aimed at consumers. They said they had run other ads in publications aimed at businesses.

3. Relish stated that the £50 device charge only applied to customers taking out a rolling monthly contract, and not to those taking up a standard 12-month contract. They did not believe that the ad had to include all of the details of all of their different price plans, and again stated that text in the ad directed consumers to the Relish website for full details of all the available price plans and the contract terms.

4. Relish said they had amended the table to refer to BT Infinity 1, which they believed offered speeds more closely aligned to the up to 50 Mbps speeds achieved by Relish customers. They had also amended the line rental price so it was correct. Further, they said they had included a clarifying statement against the direct price comparisons to remind customers there might be other benefits outside the core broadband offering: "Competitor offers may include additional benefits. Please see their websites for details". They did not consider that it was appropriate or necessary to list all the optional additional services that BT and their other competitors offered with their broadband services, as it would remove the ability to directly compare the products.

Assessment

1. Not upheld

The ASA considered that most consumers would interpret "central London" to approximate zone one. We also considered that most readers would understand the claim "Get fibre-fast broadband, fast. Delivered to your home or office in central London ..." to mean that Relish's wireless network was available and could be accessed in the majority of locations within zone one. Further, we noted that the footnote text stated "Please visit our website to see if our service is available in your area", and considered that it would alert consumers to the fact that the network might not be available in their post code. Because Relish had demonstrated that their network was available in the vast majority of zone one postcodes, we concluded that the claim 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),  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  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification), but did not find it in breach.

2. Upheld

We noted that the ad stated "Delivered to your home or office in central London". While we acknowledged that footnote text stated "Unlike many home broadband providers you don't need to take a landline with Relish", we considered the overall impression of the ad was that Relish provided both home and business wireless broadband from "just £20 per month". We understood, however, that while Relish offered home broadband from £20 per month, their business broadband started at £25 per month. Because we considered that readers viewing the ad would believe that Relish offered home and business broadband from £20 per month, and that was not the case, we concluded that the price claim was misleading.

On that point, ad (a) 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),  3.7 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),  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification), 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).

3. Not upheld

We understood that Relish offered home customers either a 12-month contract for £20 per month, which included the device cost, or a rolling monthly contract also for £20 per month, with an upfront cost of £50 for the device. We were concerned that the ad did not make clear the length of the minimum-term contract, but noted that the issue raised by the complainant was whether the omission of the £50 device charge for a rolling monthly contract was misleading. We noted that the ad did not include any suggestion that home customers could choose a rolling contract. We considered that, based on consumers' general understanding of broadband packages and the fact that they were typically offered on a minimum term contract, most consumers would expect that the £20 price point related to a minimum term fixed length contract. Therefore, because the ad made no reference to a rolling contract and so consumers would not be aware that that was an option from the ad, and the service could be obtained for £20 per month, we concluded the omission of the £50 up-front device cost for customers on a rolling monthly contract 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),  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification) 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), but did not find it in breach.

4. Upheld

We welcomed the fact that Relish had revised their website to reflect what they believed to be the most comparable competitor products, and ensured that the line rental charges quoted were accurate. However, while we accepted that it was clear from the site that Relish offered broadband contracts only, we noted that the ad did not make clear whether the comparator packages listed were broadband-only packages, or offered additional features. We considered that to allow consumers to make an informed decision with regard to which product to purchase, Relish would need to provide more information about the comparator products listed. In particular, we considered that the site should have made clear whether the stated prices were their competitors' standard or promotional prices, and whether additional fees like connection charges were included, so consumers could understand how the prices had been calculated. In addition, while we understood that three of the comparator packages were broadband only, the BT package listed was a phone and broadband package which included BT Sport, Unlimited access to BT's Wi-fi network, 50 GB of cloud storage, Net Protect Plus and weekend calls. We considered that those features were significant, and were likely to influence a consumer's decision as to which provider and package to choose. While Relish had amended the ad to include additional footnote text below the table, accessible by clicking on the link "How we calculate this table", to explain that the other providers might include extras beyond the broadband connection, we considered that that text was not prominent enough, and did not include sufficient information regarding those additional benefits to allow consumers to make an informed decision.

Because the ad did not make clear the nature of the comparator products or the basis of the price comparison, and did not state the key features of BT's package, which we considered could influence a customer's decision regarding which service to choose, we concluded that the comparison table was misleading.

On that point, 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),  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification),  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) 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).

Action

The ads must not appear again in their current form. We told Relish to ensure they made the basis of their price claims clear. We also told them to ensure they made any significant differences between their own and stated comparator products clear in their future advertising.

CAP Code (Edition 12)

3.1     3.17     3.3     3.33     3.39     3.7     3.9    


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