Background

 Summary of Council decision:

Two issues were investigated, both of which were Upheld.

Ad description

A website selling Pandora jewellery, www.xbax.co.uk, stated on the home page "FREE DELIVERY On Orders Over £30, -£5 On Orders Over £50, -£10 On Orders Over £70".

Small print at the foot of the page linked to a "Shipping" page, which included text stating "1. Your order is usually despatched within 12-48 hours by Australia Post. 2. Our shipping fee is $6.99 per order (will be converted to other currency based on your choice), no matter how many items you purchase in your order …".

Issue

The complainant, who understood that the advertiser was based in Hong Kong, challenged whether the website was misleading because it did not make clear:

1.  where the advertiser was located; and

2.  that UK customers would be required to pay customs duty and VAT on their orders.

Response

The advertiser acknowledged the complaint, stating that they would endeavour to avoid such issues arising again from their advertising.  

Assessment

1. & 2. Upheld

The ASA acknowledged the advertiser's response, but noted that they had not provided any information regarding their geographical address, and why their website did not make sufficiently clear that UK customers were required to pay customs duty and VAT on their orders.  We considered that such information was material for consumers to make an informed decision and therefore, because it had not been made sufficiently clear, we concluded the ad was misleading.     

The ad breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.    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.
   3.4 3.4 For marketing communications that quote prices for advertised products, material information [for the purposes of rule 3.3] includes:    3.4.2 3.4.2 the identity (for example, a trading name) and geographical address of the marketer and any other trader on whose behalf the marketer is acting  (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.    3.18 3.18 Quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers. However, VAT-exclusive prices may be given if all those to whom the price claim is clearly addressed pay no VAT or can recover VAT.  Such VAT-exclusive prices must be accompanied by a prominent statement of the amount or rate of VAT payable.    3.19 3.19 If a tax, duty, fee or charge cannot be calculated in advance, for example, because it depends on the consumer's circumstances, the marketing communication must make clear that it is excluded from the advertised price and state how it is calculated.  (Prices) and 9.1 (Distance Selling).  

Action

The ad must not appear again in its current form.  We told Le Basile that their future advertising must make sufficiently clear their geographical location and that UK consumers were required to pay customs duty and VAT on their orders.   

CAP Code (Edition 12)

3.1     3.17     3.18     3.19     3.3     3.4     3.4.2     9.1    


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