Seven complainants, who tried to redeem their vouchers but were informed in store that the promotional item had become out of stock, challenged whether the promotion breached the Code.
Associated Newspaper Ltd t/a Daily Mail stated that they sourced and supplied products to stores for promotional offers and that they were experienced at predicting volumes to ensure that they could fulfil demand and manage distribution. Where they relied on a retailer in the promotion, it was to be expected that the Daily Mail had less control on distribution and stock forecasting. They said the promotion was run in conjunction with Iceland, whom they had not worked with recently, which added to the difficulty of estimating demand for that particular promotion. They were therefore unable to rely on previous promotions with Iceland to assist their estimations of demand, and based it on recent promotions with comparable brands. They stated that the number of jars of Marmite redeemed for this offer was less than the stock available, and the ad for the promotion included a store finder link to the Iceland web page.
The Daily Mail stated that they took steps to include sufficient and clear information in the ad with regards to stock availability. They pointed out that the front-page flash on the newspaper stated, in capitalised font, "SUBJECT TO AVAILABILITY, WHILE STOCKS LAST, TODAY ONLY". The ad for the promotion inside the newspaper repeated the wording "While stocks last" three times within the copy. A URL link to the store locator web page on Iceland's website was included to enable readers to locate their nearest store and to direct any enquiries. The voucher contained within also stated "offer available on the first-come, first-served basis while stocks last". They regretted that despite their efforts to make clear that the product was only available whilst stock lasted, they had been unable to predict such a high level of reaction from their readers. They stated that they were working with their promotional team to consider how they could introduce further balances.
Iceland Foods Ltd stated that it had in stock approximately 10,000 500 g jars of Marmite, of which 6,479 jars were redeemed under the promotion. However, as Iceland had limited stock in some stores, it was not capable of meeting the possible demand at every store. They accepted that they had disappointed those customers who were unable to redeem their free Marmite vouchers where the stores in question had run out of stock, and that they had fallen short on that occasion. Iceland stated that estimates of take up were made, but as Iceland only had limited stock in some stores, it was recognised that the promotion must make the limited availability clear, and the information included in the promotion in the Daily Mail sought to explain such limitation. They said unfortunately, due to the promotion being agreed and issued in a very tight timescale, the parties' lawyers were not involved in checking the wording regarding the number of Marmite jars. They recognised that the information regarding availability was not presented in a sufficiently clear and timely way and accepted that the words "subject to availability" were not sufficient; they stated that they would make changes to the way in which they communicated the limitation on availability in similar future promotions.
The CAP Code required that promotors must be able to demonstrate that they had made a reasonable estimate of the likely response. The ASA noted both the Daily Mail’s and Iceland’s comments that an estimate of likely demand had been carried out, and the Daily Mail had based the estimate on recent similar promotions with comparable brands. We also noted the figures which Iceland provided in relation to the stock available and the number of redemptions. However, we had not seen any documentary evidence to demonstrate that a reasonable estimate of likely response had been carried out, for example, with information about the similar promotions on which the estimate had been based and stock distribution for participating stores in anticipation of the promotion.
Further, we noted that there had been some publicity in the few days prior to the promotion, which involved a pricing dispute between a major supermarket and a consumer goods company which resulted in a range of food products being temporarily withdrawn, including Marmite. Given the timing of those events, we considered that it was likely to have an impact on the likely demand of the promotion. Again, we had seen no evidence that it had been taken into account when carrying out the estimate of demand.
The CAP Code also required promoters to show that they were capable of meeting the likely 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.
We understood that some of the complainants were informed by their local stores that they had around ten jars in stock. Some complainants had found or understood that some stores had fewer than ten in stock or none at all. It appeared from the information available that Iceland was not capable of meeting the likely demand for the product.
Whilst we considered that consumers were likely to understand from the front-page flash and the ad within the paper that there was a limited number of 500 g jars of Marmite available for the promotion, we did not consider that phrases such as “subject to availability”, “stock is limited” and “while stocks last” were sufficient to convey to consumers the limited number of Marmite jars available. We also noted that the ad for the promotion within the paper provided contradictory information about whether the voucher could be redeemed at all Iceland stores, or at selected stores. Although the ad included a URL that directed readers to the store locator feature on the Iceland website, we noted that there were no readily available means for readers to check whether their local stores were participating in the promotion, or the stock availability at those stores, given that the promotional item could only be redeemed in store.
We welcomed both the Daily Mail’s and Iceland’s willingness to make changes to the way they conducted similar promotions in the future. However, because we had not seen evidence that both the Daily Mail and Iceland had made a reasonable estimate of the likely response, that they were capable of meeting that response or that consumers had sufficient information, presented clearly and in a timely fashion, in order to make an informed decision on whether or not to participate for the reasons set out above, we concluded that the promotion breached the Code.
The promotion breached CAP Code (Edition 12) rules
Promoters are responsible for all aspects and all stages of their promotions.
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants.
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.
Promoters must not encourage the consumer to make a purchase or series of purchases as a precondition to applying for promotional items if the number of those items is limited, unless the limitation is made sufficiently clear at each stage for the consumer accurately to assess whether participation is worthwhile.
(Availability), 8.17 8.17 All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include: and 8.17.8 8.17.8 Availability
The availability of promotional packs if it is not obvious; for example, if promotional packs could become unavailable before the stated closing date of the offer. Any limitation on availability should be sufficiently clear for a consumer to assess whether participation is worthwhile.
(Significant conditions for promotions), and 8.29 8.29 Publishers announcing reader promotions on the front page or cover must ensure that consumers know whether they are expected to buy subsequent editions of the publication. Major conditions that might reasonably influence consumers significantly in their decision to buy must appear on the front page or cover. (see CAP Help Note on Front-page Flashes) (Front-page flashes).
We noted that the promotion had ended and therefore the ad no longer appeared in that form. We told the Daily Mail and Iceland to ensure, in similar future promotions, that they were in a position to demonstrate that they had 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, in order to make an informed decision on whether or not to participate – for example, by stating on the front-page flash regarding any limitation on availability and the likely demand.