Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The ASA often receives complaints from consumers who have been unable to get hold of a product at the advertised price. Marketers must make clear if stocks are limited and products should not be advertised unless marketers have made a reasonable estimate of the likely demand for those products (Rules 3.27 and 3.28). If something is no longer available, it should not be advertised as being available. Promotors should also be aware of the specific guidance on availability for promotional marketing and the travel sector.
Make a reasonable estimate of demand
Make any limitations on availability clear
Don’t advertise a product which is unavailable
Be aware of the position on availability when running promotions
Be aware of the position on availability in travel marketing
Marketers must make a reasonable estimate of the likely demand for advertised products (Rule 3.27). Often, a reasonable estimate should be based on previous sales data for the same or similar products, and should take into account factors such as price, how much something is advertised, and the time of year when making an estimate. In one case, the ASA felt that ASDA had made a reasonable estimate of demand for an Easter promotion on salmon because, along with other factors, they had acknowledged the different time of year when estimating demand based on a previous promotion which ran at Christmas. (ASDA Stores Ltd t/a ASDA, 24 June 2015).
The ASA upheld a complaint made about an Argos ad for a watch which offered a £200 discount because the advertiser could not demonstrate that they had made a reasonable estimate of demand. Whilst the advertiser had forecast demand based on sales of the item at the usual selling price, because the item was a high priced item, which did not historically sell in high volumes, and because the discount was significant, the ASA did not consider this a sufficient basis for estimating the demand during the promotion (Argos Ltd, 09 May 2018).
The circulation of the publication in which the ad appears might also be relevant to the estimate of demand. An ad published in a national magazine is likely to generate a greater response than an ad in the regional press or other media with a smaller audience (Iwantoneofthose.com, 15 February 2012).
Ads which quote a price for a featured product must state if the marketer may not be able to supply to product at the price advertised (3.28).
If, having made a reasonable estimate of demand advertisers know that the demand will exceed supply, the ad must make it clear that stock is limited (3.28.1). Phrases such as “subject to availability” may not always be sufficient to make a limitation clear. The Argos ad for a watch discussed in the section above was also upheld because Argos did not provide the ASA with any information about the steps they had taken to monitor stocks or ensure that it was made clear to consumers once the item was no longer available at the stated price (Argos Ltd, 09 May 2018).
Products that cannot be supplied should not normally be advertised as a way of assessing potential demand unless it is clear that this is the purpose of the marketing communication (Rule 3.28.2).
If a product becomes unavailable, marketers will be required to show evidence of stock monitoring, communications with outlets and swift withdrawal of marketing material whenever possible (Rule 3.29).
An ad for Compare UR Mobile was considered a breach of Code rule 3.29 because the ad stated “5 in stock” next to a product which was found to be out of stock. In this case the ASA tod the advertiser not to advertise that a product was in stock if they did not have the information to substantiate the claim (Compare UR Mobile t/a UR-Mobile, 28 May 2014).
The ASA also ruled against a hotel website which continued to feature hotels which no longer had availability as part of the promotion but were still advertising availability and allowing selection of the menu without further information (VUR Village Trading No 1 Ltd t/a Village Hotels, 27 April 2016).
As well as the general rules on product availability in Section 3, rules 8.9 – 8.13 specifically deal with availability when it comes to promotions.
Promoters must make a reasonable estimate of the likely response and be able to demonstrate they have done so. In addition, promoters must show they were capable of meeting that response or that consumers were given appropriate information regarding availability to decide whether participate.
The right way to estimate demand will depend on the structure of the promotion, but a good place to start may be the response to previous similar promotions. Broadly, promoters should base estimates of demand on a promotion that had a similar mechanic and had a promotional item of similar value or desirability.
If, having a made a reasonable estimate of demand, promoters know they will not be able to meet it the Code requires that sufficient information, presented clearly and in a timely fashion is provided to so that consumers can make an informed decision on whether or not to participate.
Merely including a statement along the lines of “subject to availability” is not enough to relieve promoters of their obligations to avoid disappointing participants (Rule 8.9)
For more detailed guidance, see Promotional marketing: Availability.
There are specific requirements around availability which advertisers must be aware of when advertising prices in travel ads.
For more detailed guidance, see 'Travel Marketing: Availability'