A promotion in the Daily Mail in association with WH Smith plc seen on 18 May 2015 offered readers free Lego toys. Text in the ad stated "To claim your free LEGO Toy [name of toy] complete this voucher, cut it out and take it to any participating WH Smith High Street store while stocks last ... Subject to availability".
A complainant, who tried to redeem their voucher but was informed that the merchant was out of stock, challenged whether the ad was misleading, because they believed the advertiser had not made a reasonable estimate of demand for the product.
Associated Newspapers Ltd t/a Daily Mail explained that they had based their estimate of demand for the promotion on three previous, similar promotions in the two preceding years. They had taken into account stock distribution and sales numbers of the Daily Mail in WH Smith branches. They also took advice from WH Smith on stock allocations and on the number of customers who received their newspaper via home delivery and therefore might go into the store to redeem the offer, and had therefore ordered an additional 10% of the promotional items. Daily Mail explained that the supply of promotional items was treated no differently from their supply of newspapers and that no formula could produce figures that were 100% accurate as the scale and unpredictable nature of demand meant that, at times, demand could outweigh supply. They pointed out that the ad stated "subject to availability" and "while stocks last" and that branches were also supplied with postcards so that, if stock had run out, respondents could still redeem the offer by post.
WH Smith plc supplied a spreadsheet detailing the allocation of the Lego toys to each of their stores and a copy of the store briefing pack that was issued to all their store teams before the promotion ran. WH Smith made similar points to Daily Mail about how demand for the promotion was estimated by basing it on demand for previous, similar promotions in preceding years and by taking into account customers who obtained their newspaper via a different route than by visiting a participating store. They believed the spreadsheet information showed that WH Smith stores had been supplied with a more than sufficient allocation of toys in relation to customer demand, including the store the complainant visited.
The ASA noted that the information supplied by Daily Mail showed that a small percentage of customers had redeemed the offer via the postcard route. We considered participants were likely to be disappointed if they were unable to obtain the items straightaway. However, we also noted that a larger percentage of items was returned from branches at the end of the promotion; that Daily Mail's investigation had revealed that there had been no unusually high demand for any one particular unit; and that redemptions for each of the units had been similar. There was therefore no conclusive explanation of why respondents redeemed via the postcard route when stock was still available in branches, including the branch visited by the complainant on each day of the promotion.
We noted that the ad stated "while stocks last" and "subject to availability" which we considered did not relieve Daily Mail or WH Smith of their obligation to do everything reasonable to avoid disappointing participants. Daily Mail had based their stock level for the current promotion on three previous similar promotions, which had each involved collecting a similar kind of Lego toy from a WH Smith branch each day over the course of a week. The previous promotions had taken place in August 2013 and May and September 2014. The allocation of promotional items for each branch was calculated from the highest daily take up at that branch across the three previous promotions, plus an additional 10%. While only one of the previous promotions had therefore taken place at the same time of year as the current promotion (May), we nevertheless considered that the similarities in the duration of the offers, the means of redemption and the type of toy meant that they served as a reasonable basis on which to estimate demand. We noted that WH Smith had also taken previous, similar promotions into account.
We noted that the complainant had been told that stock had run out, but considered the evidence suggested that Daily Mail and WH Smith had made a reasonable estimate of demand. We therefore concluded that the ad did not breach the Code.
We investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.27 3.27 Marketers must make a reasonable estimate of demand for advertised products. (Availability) and 8.9 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. and 8.10 8.10 Promoters must be able to demonstrate that they have made a reasonable estimate of the likely response and either that they were capable of meeting that response or that consumers had sufficient information, presented clearly and in a timely fashion, to make an informed decision on whether or not to participate - for example regarding any limitation on availability and the likely demand. (Sales promotions), but did not find it in breach.
No further action necessary.