An email from ASOS, dated 31 July 2020, stated “20% off everything + free delivery*” in the subject line. Text in the email stated “11AM-1PM TODAY 20% OFF EVERYTHING + FREE NEXT-DAY DELIVERY!* Get brands like adidas, Calvin Klein and Fred Perry for payday weekend. Use Code: DOUBLETREAT”. The asterisks linked to text further down which stated “Selected marked products excluded from promo”.
IssueThe complainant, who noted there were exclusions to the offer, challenged whether the claim “20% off everything” was misleading.
Asos.com Ltd said that they qualified the claim “off everything” by clearly signposting that a small number of lines were excluded and in practice those exclusions made up 0.9% or less of their product lines. This amounted to 1,100 items which comprised of footwear (mostly branded trainers), sports performance and face and body products. They said there was an unprecedented demand for those particular types of products during that time. They explained that new products which were added to the site throughout the day were not automatically included in a site-wide promotion.
When used in the subject header of the email, the claim was followed by an asterisk which linked to the claim “*Selected marked products excluded from promo” in the summary of the key terms. Their website also stated “*Selected marked products excluded from promo” directly under the headline claim. The few product lines which were excluded from the promotion were clearly marked and easily identified on the site via each relevant product display page. They said that the average consumer would understand that the claim “XX% OFF EVERTHING*” and “*Selected marked products excluded from promo” could have included a very narrow set of qualifications. The qualifications were clearly signposted and were of limited application. ASOS said that was no more than excluding the use of gift cards and items on other promotional offers, which the ASA had previously considered acceptable. They believed none of the limited exceptions to their promotion contradicted the claim or were materially misleading to the average consumer. They referred to a previous ASA ruling on an ad in which a similar claim was found in breach of the Code. In that case the excluded items made up 4% of the product lines.
ASOS agreed that the number of exclusions in that case could be seen as significant, but considered that excluding 0.9% or less, as they had done, was not significant and would not mislead the average consumer. They also referred to a previous ruling where the ASA stated that the claim “all” would not be taken literally, which they believed supported their view that their advertising claim was not misleading. They said that if the complaint was upheld in this instance, there was a risk of taking a strict, technical and literal approach to a clear and narrowly qualified claim.
The ASA considered that the claim “20% off everything” in the subject line and body text of the email would be understood by consumers to mean that all products on ASOS.com would be reduced by 20%. We considered that consumers might generally expect that gift vouchers might not be included in a “20% off everything” promotion. However, we considered consumers would nonetheless expect that all other products sold by the retailer would be included, based on the use of the word “everything” in the claim. We noted that consumers would make a decision to open and engage further with the email based on their understanding of the claim as it appeared in the subject line, and considered that understanding would be reinforced by the repetition of the claim at the top of the email. We acknowledged the presence of an asterisk beside the claim in both the subject line and body of the email, and text at the bottom of the email footer which included “Selected marked products excluded from promo” but considered that it was not sufficient to counter the overriding impression that all products would be discounted by 20%.
We understood that around 1,100 products were excluded from the promotion and that ASOS also did not include new items added to the site. However, we considered that consumers would expect those products to be included in the promotion based on the claim in the ad. Because consumers would understand that all items would be discounted by 20%, we concluded the claim “20% off everything” was misleading.
The ad breached CAP Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) 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 in the form complained of. We told Asos.com Ltd to ensure that in future their ads did not state or imply that all their products were included in an offer, for example by referencing “everything”, if some products were excluded from the offer.