A website for Currys PC World, www.currys.co.uk, seen on 25 November 2016 included a product page for a Samsung RF24FSEDBSR American-Style fridge-freezer with the accompanying text “DISCOUNT CODE- £150 off the marked price…Also available in store. Hurry, ends Monday”. Further text stated that the product was out of stock.
The complainant, who believed that the fridge was still in stock but was not being sold at the discounted price, challenged whether the ad was misleading.
DSG Retail Ltd t/a Currys PC World said that the fridge was featured in a promotion that was offering £150 off the marked price of American-style fridge-freezers worth £1500 and over. On 25 November 2016, when the complainant enquired with customer services about stock levels, there were no fridges available to purchase and although their system showed that there was some stock, the numbers reflected in those stock levels had in fact already been purchased by other customers and that stock was therefore unavailable. They said it was not the case that they had refused to sell stock on promotion and they had not withheld stock for the post-promotional period.
Regarding their estimate of demand during the promotional period, they said that due to their price matching policy they were unable to predict accurately the uplift in sales during the promotion. Whilst they did estimate that additional units would be sold during the promotional period, they had been unable to secure additional stock from the supplier.
The ASA noted that although the ad stated that the product was “out of stock,” it also stated “available in store”. We therefore considered that the consumer’s expectation was that the product would be in stock either in stores or online at some point during the promotion and that this might prompt a consumer to make further enquiries about availability as the complainant did.
In the morning of the first day of the sale, when the complainant tried to purchase the fridge, after making enquiries it transpired the fridge was out of stock both online and in store. The CAP Code stated that promoters must be able to demonstrate that they had made a reasonable estimate of the likely response to a promotion 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. The ASA acknowledged that the promotion covered a range of ten fridges but considered that Currys PC World still needed to comply with the above rules when planning the promotion.
We acknowledged that the complainant had been incorrectly advised by online and in-store Currys PC World customer service staff that the product was in stock, but that it could not be sold until after the promotional period had ended. However, we considered that Currys PC World had failed to make a ‘reasonable estimate’ of the amount of stock they would need in order to meet an increased demand during the promotional period as required by the Code. We noted Currys PC World said they were unable to make a reasonable estimate of the likely response to the promotion due to the product price matching a competitor in the weeks prior to the promotional period. However, we did not consider this to be sufficient to remove their requirement to make such an estimate under the CAP code. Further, we did not consider that Currys PC World’s explanation that there was no stock available from the supplier to meet the predicted increase was sufficient. As set out in the CAP Code, promoters were responsible for all aspects and all stages of their promotions.
We considered that Currys PC World had not made a reasonable estimate of the likely response to the promotion and had been unable to meet actual demand for it, and that the ad misleadingly implied the product would be in stock during the promotion. We therefore concluded that it breached the Code because it caused unnecessary disappointment 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) and 8.2 8.2 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. 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. (Promotional marketing).
We told Currys PC World that in the future, when running a promotion they must make a reasonable estimate of the likely response to a promotion and ensure that they had the stock to meet this increase in demand. Where products were out of stock, they should not be included in promotions.