Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Two ads for Currys, seen on www.currys.co.uk:
a. A product listing for a LG OLED55B7V 55" TV, seen on 26 November 2017, stated "£1,499.00" in large red text. Black text beneath this stated, "Save £1,500.00". Smaller grey text stated, "Was £2,999.00 (from 19/04/2017 to 29/06/2017)".
b. A product listing for a LG OLED65C7V 65" TV, seen on 5 January 2018, stated, "£2,499.00" in large red text. Black text beneath this stated, "Save £500.00". Smaller grey text stated, "Was £2,999.00 (from 27/09/2017 to 28/09/2017)".
1. One complainant challenged whether the savings claim in ad (a) was misleading and could be substantiated.
2. Another complainant challenged whether the savings claim in ad (b) was misleading and could be substantiated.
1. & 2. DSG Retail Ltd t/a Currys stated that the 55” TV was on sale at the higher (“was”) price for a period of 72 days and the 65” TV was on sale at the higher price for a period of 35 days. They stated that there was an error in the dates displayed for the 65” TV.
At the time each complainant saw the ads, the promotional prices had applied for seven and 15 days respectively, significantly shorter than the periods within which the “was” prices had applied. None of the intervening prices were lower than the promotional price. Currys said that the “was” price for each product was representative of the market price at the time they applied. They stated that their procedure was to display the dates between which the higher prices used in a savings comparison had applied, whether the price applied five months ago or immediately prior to the promotional price. That procedure was put in place following the publication of the BIS Pricing Practices Guide in 2010, which stated “Comparisons should not be made with prices last offered more than six months ago”. It went on to say “If your comparison is made on a basis which differs on any point from the recommendations of the previous paragraph, then you should make the basis of the comparison explicit, so far as it differs, for example if the comparison is with a price last available more than six months ago, you could state when the previous price was last available”.
Currys said the price and dates were clearly presented in very close proximity to each other. They said their price promotions contained a specific price advantage which existed and was factual, the advantage being the difference between the current and previous price at a given point in time. They did not believe that the ads were misleading. They provided price history data for the products.
1. & 2. Upheld
The ASA considered that consumers were likely to understand the claims “Save £1,500” and “Save £500” in ads (a) and (b) respectively to represent genuine savings against the usual selling price of the products at the times the ad appeared.
We noted that the ad included smaller, less prominent text in a lighter font which indicated when the products had been available at the higher prices. We considered many consumers were unlikely to notice the smaller grey text. While those who did would understand when the “was” prices had been charged, that information was insufficient to alter the impression that the claims represented genuine savings against the usual selling prices of the products at the time the ads appeared. We assessed the information Currys submitted in light of that likely understanding.
Currys had referred to the Department for Business, Innovation and Skills (BIS) Pricing Practices Guide 2010. We noted that this guidance had been withdrawn and replaced with new guidance from the Chartered Trading Standards Institute (CTSI) in 2016. Both documents were designed to provide practical advice to traders on the consumer protection laws and associated practices. While we noted that the guidance provided a set of principles rather than statutory rules, and non-broadcast advertising claims were ultimately assessed under the CAP Code, we took the current guidance into account when making our assessment. The CTSI Guidance for Traders on Pricing Practices 2016 stated that a reference price was less likely to comply if it “refer[red] to previous selling prices that were charged many months ago and therefore no longer represent[ed] a genuine indication of the current value of the item”.
We noted that the 55” TV in ad (a) had been on sale at the “was” price of £2,999 for 72 days between 19 April 2017 and 29 June 2017. However, at the time the ad was seen, it had not been on sale at that price for 150 days. We therefore considered that £2,999 was not the usual selling price of the product at the time the ad was seen.
The 65” TV in ad (b) had been on sale at the “was” price of £2,999 for 35 days between 16 August 2017 and 19 September 2017. However, at the time the ad was seen it had not been on sale at that price for 99 days. We therefore considered that £2,999 was not the usual selling price of the product at the time the ad was seen.
Because the “was” prices referred to prices that were charged many months before the promotional prices were available, we concluded that the savings claims in ads (a) and (b) did not represent genuine savings against the usual selling prices of the products, and that the ads were therefore misleading.
Ads (a) and (b) 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 ads must not appear again in the form complained about. We told DSG Retail Ltd t/a Currys to ensure their future savings claims did not mislead by, for instance, ensuring that they did not base savings claims on “was” prices that had been charged many months before the promotional price was available.