A website for clothing retailer Gymshark, www.gymshark.com, seen on 6 October 2022. The “Delivery Information” webpage featured various delivery options and included text which stated “EVRI EXPRESS DELIVERY - £4.50 Free Delivery available for orders above £65 […] ORDER BY 9PM Monday – Friday for next day delivery 7PM Saturday or Sunday for next day delivery”.
The complainant, who ordered with the express delivery option and did not receive their items the next day and was told by the advertiser that orders could take 1-2 days to be shipped and that delivery times were calculated from the date shipped, challenged whether the claim “next day delivery” was misleading.
Gymshark Ltd t/a Gymshark said they offered customers the option of next day delivery (referred to as “Express Delivery”) through the courier Evri, for £4.50 on orders that were placed before 9pm Monday–Friday (or before 7pm Saturday or Sunday). They said the information was available to customers on their “Delivery Information” tab on their website and when customers selected their delivery options prior to checkout.
Gymshark said the delivery information under the “Things you need to know” heading outlined caveats to customers about postcodes for which next day delivery was not available and stated that the delivery timeframe chosen at checkout started once the order had been shipped. They said they did not provide next day delivery as an option during key sales periods, (including Black Friday, Cyber Monday or June and July summer sale periods) as they acknowledged that the increased volume in orders could affect delivery times. Gymshark said a banner appeared on the website at checkout to state if there were any shipping delays to orders, which was replicated in their FAQs, social media and their terms and conditions. They therefore believed they made clear all the key information relating to their Express Delivery service.
Gymshark said they understood the complainant elected for their Express Delivery service. They said that whilst as part of that service, they did offer customers the option of next day delivery if they ordered within the stated timeframes, they did not advertise the service as a next day delivery service, but rather an “express” one, i.e., one that was much faster than standard postage. They said that directly underneath the Express Delivery options was a section headed in bold which stated “The Delivery timeframe chosen at checkout starts once your order has shipped”, which information would have been available to the complainant prior to placing the order. They did not, therefore, believe their ad was misleading.
Gymshark said if a customer who had paid for next day delivery placed within the correct cut-off timeframe contacted them because their order was not received in time, they would duly investigate. If the delay was due to their courier, they would look into the matter and seek to reimburse any customer. They said they also had online terms and conditions which covered delays to orders beyond their control which formed part of the agreement between Gymshark and the customer when they completed their order.
The ad stated “EVRI EXPRESS DELIVERY … ORDER BY 9PM Monday-Friday for next day delivery. 7PM Saturday or Sunday for next day delivery”. The ASA considered that consumers would understand that to mean that if they placed an order by the cut-off times in the ad and selected the EVRI Express Delivery option, they would receive their goods the next day, and that applied even if the next day was a Saturday or Sunday or the order was placed on those days.
We noted that the delivery information section of the website stated that the delivery timeframe was measured from when the order had been shipped (rather than when the order was placed). We understood that to mean that the time a parcel would take to be delivered could not be known until it was shipped and could take longer than a day after the order was placed to be received. We considered that information was insufficient to counter the overriding impression of the ad that orders would generally be received the day after the order was placed, subject to the order being placed prior to the cut-off time stated in the ad. We considered that although consumers would appreciate that some orders might be late, they would generally expect orders to arrive on time, barring exceptional or unforeseen circumstances outside of Gymshark’s control.
Because the ad gave the impression that the Express Delivery option meant an item ordered before the cut-off time would be delivered the next day after the order was placed, when that was not the case, we concluded that it 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) and 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualifications).
The ad must not appear again in the form complained of. We told Gymshark Ltd not to claim that the Express delivery service was next day delivery without making sufficiently clear that “next day” meant the day after the item was shipped (rather than the day after the order was placed by the customer).