A product listing for a “Tinwell Picnic Table and Bench Set”, seen on the website www.ellanoirluxury.com, on 14 June 2021, for online furniture and home interiors retailer Ellanoir Luxury included a banner ad at the top of the web page stating, “FREE 1-7 Day DHL Tracked Shipping Today Only”. Text further down the page stated “Delivery: Up to 25 working days”.
IssueThe complainant challenged whether the claim “FREE 1-7 Day DHL Tracked Shipping Today Only” was misleading.
Ellanoir Luxury stated that their top banner had stated a delivery time of one to seven days because that was their average delivery timeframe. They considered the text on their product page to be clear and the section outlining their shipping details had been in bold type. They said they considered that consumers would be able to see on an individual product’s listing page whether or not it fell outside of the standard one to seven days delivery period.
Ellanoir also said that as they considered themselves a luxury furniture brand, with a high average price point for their products, they believed that their customers did not generally rush into buying an item, and conducted their own research prior to purchasing. They said they expected this research to include shopping around for a better deal, finding out about the Ellanoir brand, their products, services, website and all related terms and conditions, including those relating to shipping or stock levels.
The CAP Code required marketers, when making claims in their advertising, to state any significant limitations or qualifications, communicate all applicable significant conditions, refrain from omitting material information, and stated that marketing communications must not materially mislead, or be likely to do so.
The ASA considered that consumers would understand the banner at the top of the website, stating “FREE UK 1-7 Day DHL Tracked Shipping Today Only”, to mean that the advertiser was offering free 1- to 7-day shipping on that specific day across all products on the website. The banner offered no qualification that this offer was subject to restrictions based upon the availability of certain products, or that it was only available in relation to a limited range of products.
We acknowledged that the listing for the specific product in this case stated that its delivery could take up to 25 days. That information, however, was presented in relatively small text further down the page. We also noted that at the time of the complaint, when proceeding to the checkout page of the website for the product in question, only two shipping methods were shown, both of which offered “Free secure 1-7 Day Tracked Special Care DHL Shipping”, with no mention of a potentially longer delivery time. We considered, given the lack of qualification to the claim in the banner, that the delivery information in the product listing was likely to contradict rather than clarify the banner’s wording.
We also considered that as the checkout page of the website only showed two shipping options, both stating ‘Free Secure 1-7 Day’ delivery, consumers would expect this to be the timeframe in which their purchase would be delivered. For those reasons, we concluded the ad was misleading.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (Misleading advertising), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification) and 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: (Promotional marketing).
The ad must not appear again in the form complained about. We told Ellanoir Luxury Ltd to ensure their advertising did not mislead about delivery times, including by ensuring that significant qualifications for promotional offers were made sufficiently clear and that qualifications did not contradict rather than clarify.