A banner ad, viewed on a mobile device on 2 July 2015, promoted a Three mobile plan. Text stated "Scratching around for the best deal sucks. Get the Samsung Galaxy S6 at the UK’s lowest price for a limited time only … From £35 a month. No upfront cost”. Footnote text stated “UK’s lowest price claim based on a price comparison of purchasing a Samsung Galaxy S6 on Three’s 1GB, unlimited texts and minutes to the nearest equivalent plans of O2, EE, Vodafone, Virgin Media, Tesco Mobile and Carphone Warehouse as of 04/06/2015”.
The complainant, who believed that the plan could be purchased for less than £35 per month from a third party retailer, challenged whether the claim “UK’s lowest price” was misleading.
Hutchison 3G UK Ltd t/a Three stated that they had made clear that the basis of the claim was a comparison of the price of their 1 GB, unlimited minutes and texts plan versus their competitors’ nearest equivalent plans. Three stated they had checked the claim against all of their main competitors, namely, O2, EE, Vodafone, Tesco Mobile, Virgin Media (via their direct sales channels), and the indirect channel Carphone Warehouse, which represented the majority of the contract handset market. They provided market share data from an independent party which they believed demonstrated that the competitors selected constituted over 95% of the market. They believed the small print made it very clear who they had compared their prices with and when. They asserted that the remainder of the market was so fragmented that it was not practical to check the pricing of all small independent retailers.
Three explained that the offer was advertised from 5 June until 15 July 2015. Throughout that period they checked the market regularly to ensure that none of their competitors were selling a comparable plan more cheaply. They provided a document that showed the selected competitors’ pricing for the plan on 4 June, which showed that Three was cheapest for comparable plans. They also submitted evidence, sourced from a third-party consultancy, dated 4 July, which showed that on that date, Three was the lowest price network for a 1 GB ‘all you can eat’ minutes and ‘all you can eat’ texts plan. One plan sold through Carphone Warehouse was the same price for 1 GB of data but included fewer minutes. Accordingly Three said no-one was cheaper for a comparable plan at the relevant time.
The ASA noted that the complainant reported seeing a cheaper equivalent deal from both the Carphone Warehouse and another third-party seller at the time she viewed the ad. We considered that consumers would understand the claim “the UK’s lowest price” to mean that the phone and plan could not be purchased from any other retailer across the UK for less than £35, and that this claim was accurate at the time they viewed the ad. While we noted that the unlinked footnote text referred to particular retailers and to a particular point in time, we noted that it lacked prominence and, nevertheless, we considered that the information was not sufficient to counteract the overall impression that the claim "the UK's lowest prices" related to all retailers and was accurate at the time the ad was seen.
We noted Three’s assertion that the retailers included in the comparison constituted over 95% of the contract handset market. However, we noted that the independent market share data provided related to all sales achieved across all channels, not solely the named retailers' direct sales. Therefore, while we acknowledged that the sales data provided was likely to represent a large proportion of the market, it was not possible to determine the exact market share covered in the comparison. Further, we considered that to substantiate the claim, “the UK’s lowest price”, Three needed to provide comparative sales data covering all mobile retailers across the UK. Therefore, in the absence of that data, we concluded that the claim 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), 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors) and 3.39 3.39 Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises. (Price comparisons).
The ad must not appear again in its current form. We told Three to ensure they made the basis of their comparative claims clear, and did not misleadingly imply that they applied to all their competitors and were accurate at the time the claims appeared, if that was not the case.