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 a product is on promotion, it’s likely that the projected demand will need to take account of sales from previous promotions rather than relying only on non-promotional sales (Play Ltd, 25 April 2012 and Argos Ltd, 7 December 2011).
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). 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).
Phrases such as “subject to availability” do not relieve promoters of the obligation to take all reasonable steps to avoid disappointing participants (Rule 8.9).
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). Switch selling is unacceptable (Rule 3.30).
If promoters are unable to meet demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside their control, participants should be offered a refund or a product of a similar or greater quality and value. In 2011, the ASA decided not to uphold a complaint against Superdrug and Express Newspapers because they offered respondents who could not get hold of the promoted item a product of similar value (Express Newspapers and Superdrug Stores, 4 May 2011).
Promoters must not encourage the consumer to make a purchase or series of purchases as a precondition to applying for promotional items if the number of those items is limited, (Rule 8.11). The ASA upheld a complaint about a joint promotion between Argos and Express Newspapers on the grounds that it encouraged consumers to purchase the Sunday Express as a precondition to obtaining a board game, because the number of board games was limited (Express Newspapers and Argos Ltd 2 March 2011).