Summary of Council decision:
One issue investigated and Upheld.
A product listing for the “Gro Anywhere Travel Baby Blind” featured on www.argos.co.uk, seen on 14 November 2017, included the text “£24.99* Save £10”, with a strike through the “was” price of £34.99.
The complainant challenged whether the claim “Save £10” was misleading and could be substantiated.
Argos Ltd stated that their systems did not allow a pricing promotion showing a cross out unless it met the requirements of a genuine offer for the time a product was on and off promotion and that the discount was not shown for longer than the product was sold at the higher price. They informed us that their pricing was in line with the Chartered Trading Standards Institute (CTSI) guidance and Primary Authority Assured Advice they had received. They provided the pricing history for the product from the start date of their Spring/ Summer catalogue on 22 July 2017 to 16 February 2018 which showed that the item was priced at £34.99 for 65 days between July and November 2017 and was priced at a lower amount for 56 days between August and November 2017. They stated that the product was sold at the price of £34.99 in the period prior to the promotion (a period of 20 days) and that they had sold 1.8 times the number of units than when the product was subsequently on offer (a period of six days). They said their pricing history demonstrated that the savings claim represented a genuine saving against the usual selling price of the product.
The ASA considered that consumers would understand the claim “Save £10” to represent a genuine saving against the usual selling price of the product at the time the ad appeared.
We acknowledged that Argos had received Primary Authority Assured Advice on their approach to price promotions where Trading Standards had assessed Argos’s ‘house rules’ and training on price promotions, but that it did not specifically address the basis of such “was” price claims. We considered that the pricing history provided by Argos showed that the product price had fluctuated on multiple occasions over a five-month period, sometimes for very short periods. We noted that, from 22 July, the product had been on sale overall at the higher price for slightly longer than at a lower price, although we had not seen the pricing history for the product prior to that date. We considered that further pricing history prior to 22 July was important in determining whether the higher price was the usual selling price.
During this period the product was offered at the lower price of £24.99 for a continuous period of 32 days, which was longer than for any other price between 22 July and 14 November. In the weeks leading up to the promotion, the product was offered at an intervening price of £26.99, lower than the “was” price referenced.
Because we had not seen pricing history for a sufficient period, and because the price had fluctuated between several prices, including for the longest period at the lower price of £24.99, we considered it had not been demonstrated that the higher price of £34.99 was the usual selling price of the product.
Therefore, because we had not seen evidence that the savings claim represented a genuine saving against the usual selling price of the product, we concluded the savings claim 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) and 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).
The ads must not appear again in its current form. We told Argos Ltd to ensure their future savings claims did not mislead and to ensure they substantiated savings against the usual selling price of their products.