Ad description
An e-mail, in February 2011, for Aldi supermarket, had the subject heading "Try the Aldi challenge today". The body of the e-mail had the headline "Try the Aldi challenge today and see how much you can save!". Below were two images, one showing 13 premium brand products with the text "Other supermarkets £13.92", and next to it the second featuring 13 equivalent Aldi products and the text "Your Aldi store ONLY £7.53". Text between the two images stated "SWAP & SAVE OVER 40%*". Underneath an image of a sales receipt showed individual price information for each of the 13 Aldi products followed by the text "TOTAL SAVINGS £6.39". Small print linked to the asterisk stated "Based on a selection of branded products checked on mysupermarket.com on 20/01/2011. The cheapest competitive price pro rata has been used for 'other supermarkets' using the top three retailers. This does not include offers or multibuys. Aldi prices and packaging correct as of 20/01/2011".
Issue
1. The complainant challenged whether the comparison in the ad was unfair and misleading, because it compared premium-brand products from other supermarkets with Aldi's equivalent non-branded items.
2. The ASA challenged whether the ‘other supermarkets’ price claim was misleading because it did not identify which items were from which of the top three retailers.
Response
1. Aldi Stores Ltd (Aldi) believed the ad was not misleading. They maintained the ad was clear and unambiguous, because it was obvious to consumers that Aldi’s own-brand products were being compared with market-leading premium-brand products sold at other supermarkets. They noted that the ad included clear photo shots of the 13 Aldi own-brand products and the 13 premium-brand products, which they were being compared with, and included information about their prices and pack sizes. They said that nothing within the ad suggested that the products concerned were the same or equivalent, and they explained that the premise of the ad was to encourage consumers to swap to brands sold by Aldi in order to save over 40%. They said that this 'swap and save' promotion had been run in similar guises by other supermarkets, the aim of which was to encourage customers to buy own brand products instead of the established brands, so as to make savings.
Aldi maintained that they had made a fair and objective comparison between products of a similar quality. They said they had had to compare the market-leading premium-brand products with their own brand products because they did not sell the premium-brand products in question. However, they believed their own-brand products were not materially different in quality or inferior to the premium-brand products and they provided some evidence which they believed supported this, including independent taste test results for four products, comments from suppliers and buyers on product specifications, product ingredient information, and comparative performance test results in respect of one of the products.
2. Aldi explained that their aim was to produce a shopping basket containing typical basic household essentials which was both representative and fair under all the circumstances. They explained that to produce various comparable prices, they had checked the website, mysupermarket.co.uk, on 20 January 2011 and they provided copies of the relevant pricing information for each of the premium-brand products at the top three retailers: Tesco, Asda and Sainsbury's. They explained that all the products were listed as being on sale at Tesco, where they could have been purchased at a total price of £14.97. They said that they could have suggested a higher saving by using just Tesco products in the comparison but, in order to be as fair as possible, they did not and had chosen the cheapest from each competitor. They explained that one of the products was not available at Asda on the day in question, and two of the products were not available at Sainsbury's.
Aldi explained that they had pro rata'd the prices in respect of four of the products because the competitor product and Aldi equivalent had slightly different pack sizes, to ensure a fully fair comparison. They provided a schedule setting out the pack sizes/weights of each of the 13 Aldi and 'other supermarkets' products which were used in the comparison.
Aldi maintained that their experience indicated that consumers tended to visit different stores for a range of shopping over the course of a week, and that this typically occurred where an individual branch of a retailer did not have a product in stock. They provided the results of some market research which, they asserted, showed that 60% of shoppers who had shopped at Aldi in the past three months used Aldi as a 'top up' shop, rather than their main source of groceries.
Aldi pointed out that their ad properly verified prices at all points by utilising all information available and they believed they had been scrupulous, honest and fair in their approach.
Assessment
THIS ADJUDICATION REPLACES THAT PUBLISHED ON 13 JULY 2011. THE WORDING OF POINT 1 HAS CHANGED BUT THE DECISION TO UPHOLD REMAINS. THE DECISION ON POINT 2 HAS BEEN REVERSED, MAKING THE COMPLAINT 'NOT UPHELD'.
1.Upheld
The ASA noted that the ad, which was an e-mail, was likely to be read as a whole. We considered that the photo shots of the products, and the text “Swap to Aldi’s exclusive brands” and “SWAP & SAVE OVER 40%”, taken together made it clear that Aldi’s exclusive brands were being compared with more widely recognised brand products at other supermarkets. We considered that the products compared did meet the same functional needs (being sufficiently inter-changeable) and that exclusive own-brand products could, in certain circumstances, be compared with premium-brand products.
However, we considered that the comparison in this case was likely to mislead. We noted that a comparative ad could mislead if the decision to buy on the part of a significant number of consumers to whom the ad was addressed was made in the mistaken belief that the savings on the selected goods were representative of general savings. What was not made clear was that all the Aldi products were, in effect, own-brand products (albeit featuring their individual exclusive brand names such as Rio Doro and Belmont Oaties rather than the Aldi name) and all the “other supermarket” products were premium-brand rather than own-brand products.. We considered that a significant number of consumers to whom the ad was addressed were likely to believe that the very substantial savings of over 40% between Aldi and ‘other supermarkets’ was based on a representative sample of products sold by those supermarkets; whereas in fact only premium-brand products had been selected from the competitors and the equivalent of own brand from Aldi.
Because Aldi had not made it clear that the ‘other supermarkets’ also sold cheaper own branded products, we concluded that the price comparison was misleading.
On this point the ad 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),
3.3
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.
(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). We also investigated this point under CAP Code (Edition 12) rules
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.
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.
(verifiability), and 3.43 (unfair advantage) but did not find it in breach.
2. Not Upheld
We noted that the mysupermarket.com website referred to in the small print in the ad listed prices for Tesco, Sainsbury’s, Asda and Ocado under groceries. The ASA understood that Aldi had calculated the 'other supermarkets' price of £13.92 by taking the cheapest price for each of the 13 premium brand products at Sainsbury's, Tesco or Asda quoted on mysupermarket.co.uk on 20 January 2011 and adding them together. We noted that one item was not in stock at Asda, and two products were not in stock at Sainsbury's on the day in question. We noted Aldi's argument that had they simply used prices at Tesco, the 'other supermarkets' price, and therefore the savings quoted would have been higher, but they considered it fairer to take the cheapest price from Tesco, Asda and Sainsbury's. We considered that although the ad did not refer to the other retailers by name, nevertheless it would be clear to a consumer visiting the mysupermarket.com website who the top three other retailers were. Furthermore, whilst the ad did not set out which of the 13 products were purchased from which retailer or state the competitor price for each item, we considered that the absence of some information in this respect would not mislead consumers because Aldi had calculated the overall price saving in the ad by choosing the cheapest available prices on offer from the other three retailers.
On this point we considered the ad under CAP Code (Edition 12) rules
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),
3.3
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.
(Comparisons with Identifiable Competitors),
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.
(verifiability) 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) but did not find it in breach.
Action
The ad must not appear again in its current form. We told Aldi to take care not to mislead when presenting savings on selected products.
