A product listing on the website BrandAlley, www.brandalley.co.uk, seen on 7 November 2019, for a Sealy “select balance dual layer double mattress topper”, showed an image of the product with the description underneath and the price of “£32.00” in a red font colour. Next to the price was the statement, “Was £100.00” in a black font colour and “68% Off” in a bold black font.
The complainant, who believed that the product had not been sold at the “was” price of £100, challenged whether the savings claim was misleading and could be substantiated.
BrandAlley UK Ltd t/a Brand Alley confirmed that they sold the mattress topper in three promotions, each lasting approximately seven to ten days during the last three months. They stated that the brand, Sealy, confirmed that the product had been sold, and continued to be sold at £99.99 throughout that period.
Brand Alley explained that Sealy provided the RRP of £99.99 and confirmed that the product was sold on the Sealy website at that price. Brand Alley stated that they checked and substantiated the price prior to Brand Alley selling the product. Brand Alley provided a link to show the product advertised at £99.99 on the Sealy website. They stated that they believed the reference prices used to advertise the savings to customers represent an established selling price.
Brand Alley provided evidence that the manufacturer had used the reference price for approximately four years. They also provided screenshots of comparable products offered for sale on third-party websites at a similar price range.
The ASA understood that Brand Alley was a “flash sale website” offering discounts on designer brands and that they did not offer their own products. We therefore considered that, due to the nature of the site, the basis of the “was” savings claim would be unclear to consumers. However, we generally considered that consumers would understand the claim to be based on a genuine previous selling price for the product. We noted that Brand Alley had used the manufacturer’s suggested RRP as the basis of the “was £100.00” claim. However, we had not seen any evidence to demonstrate that “£100.00” was the price at which the mattress topper was usually sold. We also considered that even if Brand Alley had presented the previous price as an RRP, it was not sufficient to use a manufacturer’s RRP as the only substantiation for a savings claim.
Furthermore, they had not provided any invoices or other evidence to show that the manufacturer, or any other retailer, had sold the product at the quoted price. Because we had not seen any evidence to demonstrate that £100.00 was a genuine price at which the mattress topper had been sold, we concluded that the savings claim had not been substantiated and 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 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. (Prices).
The ad must not appear again in the form complained about. We told BrandAlley UK Ltd t/a Brand Alley to ensure they held evidence to substantiate their savings claims.