Summary of Council decision:
Two issues were investigated, one of which was Upheld. The other was informally resolved after the advertiser agreed to amend or withdraw their advertising.
Claims on www.amazon.co.uk, seen in December 2017, promoted their “one-day delivery” service as part of Amazon Prime membership. In the top right-hand corner of the home page of the website, the ad featured the claim “One-Day Delivery for Christmas”. Further text on the home page stated “get unlimited One-Day Delivery with Amazon Prime”, with a link to start a 30-day free trial with Amazon Prime. On a web page titled “About Amazon Prime”, under the heading “Delivery”, text stated “Unlimited One-Day Delivery on millions of eligible items at no extra cost. Depending on the time of day that you place your order and your delivery address, if in stock it’ll be dispatched that same day and delivered the next day”. On a separate web page, text stated “Start Your Amazon Prime Free Trial Membership. Start a 30-day free trial to also get: Enjoy fast delivery. Unlimited One-Day Delivery on millions of eligible items”. On a product listings page, the web page included a tick-box alongside the text “Yes, I want a free trial with FREE One-Day Delivery on this order”.
The complainants, most of whom reported not receiving their delivery by the following day, challenged whether the “one-day delivery” claims were misleading.
Amazon Europe Core Sarl t/a Amazon pointed out that the vast majority of the complaints were received following widespread media coverage of an initial handful of complaints about the issue.
Amazon explained that the Prime service included benefits relating to delivery, video and music among other things. They said one of the benefits was the use of the One-Day Delivery service at no additional cost, whereby Prime members were not charged delivery fees when selecting the One-Day Delivery option, whereas non-Prime members had to pay a flat fee.
Amazon said that consumers were likely to understand from the ad that they would not have to pay to use the One-Day Delivery option, and that it was available on a selection of items. They said the ads did not promise a particular speed of delivery of a particular product. They believed consumers understood from using the website, that individual delivery dates were displayed for each order and that they would have to check each item they were interested in purchasing to find out whether One-Day Delivery was available, and what the delivery date was with One-Day Delivery at that particular time to the address to which they wanted the item delivered. They said that the speed of delivery of a future order could not form part of consumers’ decision about whether to sign up to Prime. They said a customer’s later disappointment about the speed of a One-Day Delivery order should not render their marketing misleading.
Amazon explained that for a delivery to be recorded as on-time, the delivery needed to have been received by the customer one day after it was dispatched. They said that late deliveries could occur for a number of reasons that were specific to each order and often outside of their control such as bad weather, carrier failure and human error. They said they received very few customer complaints relating to late deliveries. They said the actual date of dispatch was based on several factors (e.g. item type, Amazon location where item was stored, delivery destination), but there was not a general trend of dispatch dates being more than one day after the order date.
Amazon provided data on a confidential basis which showed the percentage of their One-Day Delivery orders which were recorded as on-time in 2017. They showed that the weeks with lower on-time deliveries were affected by snow and ice across the UK.
Amazon provided confidential figures for the percentage of orders with a forecast delivery date of one day after the order, when made at various different cut-off points in the day, from before 2 pm to before 8 pm. They showed that the later in the day a customer ordered, the greater the possibility that the forecast delivery date would not be the day after the order.
Amazon pointed out that consumers were provided with the forecast delivery date throughout the customer journey: in the search listings, on the product listings page and in post-order confirmation pages and emails.
Amazon said that their Deliveries in the UK Help page of their website, which was two clicks away from the home page, stated that the delivery time for their One-Day Delivery service was one-day after dispatch. They showed that it was also stated on a separate web page “About One Day Delivery”. That web page said that the time of day will affect whether or not dispatch occurred on the day of the order.
The ASA noted that the home page featured the claim “get unlimited One-Day Delivery with Amazon Prime”, with a link to start a 30-day free trial with Amazon Prime. A separate web page featured the headline claim “Start Your Amazon Prime Free Trial Membership”, alongside the claim “Unlimited One-Day Delivery on millions of eligible items”. In the absence of information to indicate otherwise, we considered consumers were likely to interpret the claim “One-Day Delivery” in those contexts to mean that all Prime labelled items were available for delivery by the end of the day after the order was placed, so long as the customer did not order too late in the day or for Sunday delivery. We considered consumers would appreciate that some orders might be late, but would generally expect orders to arrive on time, barring exceptional or unforeseen circumstances outside of Amazon’s control.
We noted that text on one web page in the “Help & Customer service” section of the website stated that the delivery time for One-Day Delivery was “1 business day after dispatch”, while another web page in that section included text which stated “If you choose One-Day Delivery, your order will be dispatched with the intention that it's delivered one day after dispatch”. However, we considered that this information was unlikely to be of use to consumers as it did not inform them how soon after their order they would receive their delivery. In any case, many consumers were unlikely to visit those separate web pages (which in some cases were two clicks away) before deciding to make a decision in relation to purchasing Amazon Prime.
We acknowledged that in most cases a forecast delivery date for a specific item was included in the search listings and throughout the customer journey. Therefore, in those circumstances, consumers were unlikely to be misled about the forecast delivery date for the relevant item. However, the claim “One-Day Delivery” appeared elsewhere on the Amazon website, where it was presented as a benefit of Amazon Prime to prospective Prime members. In that context, we considered the claim was likely to cause consumers to make a transactional decision in relation to purchasing Amazon Prime.
We acknowledged that Amazon had robust data for the percentage of orders categorised as “One-Day Delivery” that were received on-time by the forecast delivery date. However, we considered that those figures were not relevant to support the “One-Day Delivery” claims because they did not show how often that forecast date was actually the day after the order was placed.
We reviewed the figures for the dates One-Day Delivery orders were forecast to be delivered by. We acknowledged that the majority of orders were forecast to be delivered by the next day (and indeed were delivered on time). However, a smaller but significant proportion of orders at each of the time slots, including before 2 pm, were not forecast for delivery the subsequent day, meaning that a significant proportion of Prime labelled items were not available for delivery the next day.
Because consumers were likely to understand that, so long as they did not order too late or for Sunday delivery, all Prime labelled items would be available for delivery the next day with the One-Day Delivery option, when a significant proportion of Prime labelled items were not available for delivery by the subsequent day with One-Day Delivery, we concluded that 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. (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 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification).
The ad must not appear again in its current form. We told Amazon to make clear that some Prime labelled items were not available to be delivered by the next day.