Ad description
Product listings on www.clearance365.co.uk, seen on 2 July 2015, promoted two products. Text on the product page for a "Check Jacket" stated, "Was £99.00 Now £23.50 SAVE £75.50". Text on the product page for a "Mesh Insert Dress" stated, "Was £59.00 Now £14.50 SAVE £44.50". Both pages indicated that the items were Kaleidoscope products.
Issue
The complainant challenged whether the "was" prices and associated savings claims were misleading and could be substantiated.
Response
Freemans plc t/a Clearance365 said their site was introduced mainly to sell off stock from their other brands. They said Clearance365 was part of the FGH group of companies, which comprised Freemans plc and Grattan plc. The trading titles of Freemans plc were Curvissa, bonprix, Swimwear365 and Clearance365, and those of Grattan plc were Kaleidoscope, Look Again, Witt and Lascana.
They said their pricing policy made clear that a “was” price was the highest price at which the item had been offered for sale in the last 12 months. They said the dress had been on sale at £59 and the jacket at £99 in several of their publications. They provided documents showing that they were still currently on sale at those prices on the Freemans and Grattan websites, and in those catalogues.
They believed they were entitled to make the savings claim under the provisions of the BIS Pricing Practices Guide (PPG).
Assessment
Upheld
The ASA noted Clearance365’s comments about the ad's compliance with the PPG. However, while we took that into account, we assessed whether it breached the CAP Code.
We understood that Clearance365 was part of a wider group of companies, which included Freemans and Grattan. We noted that the Clearance 365 website included a bar across the top that linked to a number of other websites, which consumers could move between while still being logged into the site. Those sites included Kaleidoscope, but did not include Freemans or Grattan. Given the reference to “Clearance” in the name of the website, we considered that consumers might not necessarily expect that the products had been sold on the site itself at the stated “was” prices, but that they were likely to assume that those prices referred to the amount at which they were usually sold on one or more of the sites linked to at the top of the page. Given that they were Kaleidoscope products, they were likely to assume that the “was” prices related to the prices at which the products had been sold on the Kaleidoscope site, and that the savings claims therefore represented genuine savings against the usual selling prices of the products on that site at the time the ad appeared. We would therefore need to see evidence relating to the prices at which the products had usually been sold on that site.
We were unable to determine whether the prices on which the savings claims were based were the usual selling prices of the product on the Kaleidoscope website, because we had not seen evidence to demonstrate that that was the case, such as the pricing history of the products. We noted that, at the time the ad appeared, the Kaleidoscope site was promoting the jacket with a “was” price of £79 and the dress with a “was” price of £49, which did not match the stated “was” prices in the ad.
We had not seen evidence to demonstrate that the "was" prices represented the prices at which the products were usually sold on the Kaleidoscope site at the time the ad appeared, nor therefore that the savings claims represented genuine savings. We therefore concluded that the "was" prices and associated savings claims were 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. (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 3.17 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).
Action
The ad must not appear again in its current form. We told Freemans plc to ensure their future savings claims did not mislead about the benefit available.
