Background

Summary of Council decision:

Five issues were investigated of which one was Upheld and four were Not upheld.

Ad description

Three national press ads, read on 12 October 2011 and a TV ad seen on 13 October 2011, for Sainsbury's "Brand Match".

(a) One press ad featured an image of a bottle of Heinz Tomato Ketchup. Text stated "The end of shopping around. Sainsbury's Brand Match. We do all the work for you - so we check our prices and deals* on brands against Asda and Tesco, and if your same shop is more expensive we give you a coupon at the till, for the difference. There and then. Or even better we'll tell you how much you saved with Sainsbury's".

(b) A second press ad featured an image of a bottle of Domestos bleach. Text stated "No really we match Asda and Tesco deals. Sainsbury's Brand Match means we even match Asda and Tesco's deals* on brands, including multi-buys. And you don't have to lift a finger - we give you a coupon at the till for the difference".

(c) A third press ad featured an image of a bottle of Ribena squash. Text stated "Seriously, you don't have to do anything. With Sainsbury's Brand Match, we give you a coupon at the till instantly if we're more expensive than Asda or Tesco on brands, including deals* and multi-buys".

Small print in all three press ads stated "Minimum spend £20. Buy at least one comparable branded product (e.g. same size, variety, flavour). If the same branded shop could have been bought for less at Asda or Tesco on the same day you will get a coupon for the difference. Maximum coupon value £10. Maximum purchase quantity of any single item if not advertised is 10. *Deals will be matched if you buy the same quantity. Available until 31st December 2011 ... For terms, conditions and all exclusions see www.sainsburys.co.uk/livewellforless. You can live well for less at Sainsbury's. Based on price perception data July 2011".

(d) The TV ad showed a father and son preparing breakfast. The voice-over stated "Sainsbury's Brand Match. You won't pay more for brands than you would at Asda or Tesco. We'll even match their deals. Sainsbury's Brand Match - Live Well for Less." Text at the bottom of the screen read "Minimum spend £20. Buy at least one comparable branded product. If the same branded shop could have been bought for less at Asda or Tesco's on the same day you will get a coupon for the difference. Maximum £10 coupon. Excludes Locals, Centrals and online. Selected stores excluded. Available until 31st December 2011. Based on price perception data July 2011. For terms and conditions and all exclusions see www.sainsburys.co.uk/livewellforless".

Issue

Asda Stores Ltd (Asda) challenged whether:

1. the claim "The end of shopping around" in ad (a) was misleading, because it implied that there was no value for consumers in shopping at other retailers, which was not the case. Asda pointed out that the "Brand Match" offer did not apply to many products, including own brand products and that, under their own price promise, groceries would always be 10% cheaper at Asda than at Sainsbury's;

2. the "Brand Match" claims in ads (a), (b), (c) and (d) were misleading because they did not make clear how consumers could verify the data on which the claims were made;

3. ads (a), (b), (c) and (d) were misleading, because the webpage address for the terms and conditions did not link directly to the terms, conditions and exclusions of the "Brand Match" promotion;

4. ads (a), (b), (c) and (d) were misleading, because they did not make clear significant conditions of the "Brand Match" price promise, for instance that brands could be withdrawn at any time, or that less than half of all Sainsbury's stores were participating; and

5. the claim in ads (a), (b), (c) and (d) that prices were checked "on the same day" was misleading and could be substantiated.

Response

J Sainsbury plc t/a Sainsbury's (Sainsbury's) explained that their new Brand Match price promise (Brand Match) meant, subject to certain conditions, they would match the prices on branded products at Asda and Tesco and provide a money off coupon at the till if the branded products in a customer's basket could have been bought more cheaply at either of their competitors' stores. They said they collected prices by running a daily web scan of the Asda and Tesco home shopping websites using independent data provided by Brand View, and sent the information to their participating supermarket stores every day.

1. Sainsbury's stated that the claim "The end of shopping around" was intended to grab consumers' attention and encourage them to read the additional information about Brand Match. They believed that the worry that branded products may be cheaper elsewhere was one reason why consumers would shop at more than one supermarket and that this was what Brand Match was intended to address. They believed the fact that the offer applied only to branded products was very clear in the ad and that the name reinforced that.

They pointed out that the ad directed customers to the "Live Well For Less" website and that on visiting the website consumers were immediately presented with a tab titled Brand Match, which led them to a definition of "branded products". They stated that Brand Match was available on 14,000 branded food, health and beauty and household products and that the website had included an exhaustive list of product categories that were excluded, such as electrical items, home ware and clothing. They believed they had presented this information clearly, that the list of excluded categories was no longer than was commonly found in the industry and that the exclusions were in line with what consumers would expect.

They explained that the prices used in Brand Match were those the customer would have paid in Asda or Tesco on the day they did their shop. Although they did not take into account vouchers that may be issued by Asda in accordance with its price guarantee, they did not believe Brand Match vouchers would be taken into consideration by Asda either, which would make their claim to be 10% cheaper on groceries difficult to support if the same logic was applied.

2. Sainsbury's said Brand Match was a simple calculation of like-for-like branded products available in Asda and Tesco and was therefore easy for consumers to understand and to verify. They said the terms and conditions stated that if consumers had a question about the data used to calculate their voucher, they could contact call centre staff who would explain to them item by item how much Asda and Tesco charged for those products that day.

Clearcast stated that they believed Brand Match was a straight forward price promise and that it was clearly explained in the TV ad that the calculation would be carried out at the till, where the customer would receive their voucher.

3. Sainsbury's said they had included the "Live Well For Less" website throughout their advertising and they reiterated that they believed the website was easy for consumers to navigate and provided all of the information they needed regarding Brand Match.

Clearcast said they were satisfied with the assurance they received that all of the relevant detail would be included on the website referred to in the TV ad.

4. Sainsbury's believed all significant conditions were made clear to consumers in the ads and that the full terms and conditions and extensive FAQs were easily accessible on the website, the address for which was included in all of the ads. Sainsbury's said the text "excludes Locals, Centrals and online. Selected stores excluded" had been included in the TV ad and that, although an error had meant similar text was not included in the early print advertising, this had been quickly rectified. They said the phrase "Selected stores excluded" was used to succinctly explain that 23 of their "main estate" stores would not be running Brand Match because they lacked the technological capability. They pointed out that those stores were named in the terms and conditions and that they were not concentrated in any one area of the country. They stated that the participating stores accounted for around 70% of their total in-store sales.

They stated that, if a technical error in a competitor's pricing caused a product to be listed at an incorrect price, they would wish to ensure this error was not factored into Brand Match. They said the clause in the terms and conditions that stated "Sainsbury's Supermarkets Ltd reserves the right to remove individual Comparable products from Sainsbury's Brand Match" had been included solely to guard against such an eventuality and had not been relied upon to date.

Clearcast said they were satisfied that the inclusion of "Selected stores" and the text directing viewers to the website for full terms and conditions covered the significant exclusions to the offer.

5. Sainsbury's said the price data supplied by Brand View was obtained at the same time each day from the Asda and Tesco home shopping websites and communicated to their stores. They provided us with data for a sample period.

Clearcast said they were satisfied with the assurance they received that prices would be checked on a daily basis.

Assessment

1. Not upheld

The ASA noted that the claim "The end of shopping around" in ad (a) was immediately followed by the name Brand Match and an explanation of how the price promise worked, which included the statement that Sainsbury's would "check our prices and deals* on brands against Asda and Tesco". We considered that readers would therefore understand that the ad related to a promise to match Asda and Tesco on branded products and that own label lines would be excluded. Although we considered consumers would be aware of the wide range of products stocked by Sainsbury's, we considered that the image of the bottle of Heinz ketchup implied that the promise applied to food and we noted that the small print directed consumers to the website, where they would find a definition of "branded products" and a list of excluded product categories. We noted that Brand Match applied to health and beauty and household products as well as food and we considered that the list of excluded product categories, which we understood was in line with those commonly used in the industry, was not sufficiently significant to warrant specific reference in the ad.

We did not consider consumers would infer from the ad that Sainsbury's would always be cheaper on included branded products, or that the total cost of their shop (which was likely to include both branded and own-label products, from both included and excluded product categories) could not be lower by shopping at other retailers. We considered that consumers could 'shop around' for several reasons, including to take advantage of savings on own-brand products or to benefit from other retailers' price guarantees, and that the ad, which referred explicitly to a price promise on certain branded products available from two competitors only, was unlikely to lead them to believe that they could not continue to benefit by doing so. We therefore concluded that the claim "The end of shopping around" was unlikely to mislead.

On this point, ad (a) was investigated under CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 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),  3.7 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),  3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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.  (Qualification) and  3.11 3.11 Qualifications must be presented clearly.
BCAP has published Guidance on Superimposed Text to help television broadcasters ensure compliance with rule  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  . The guidance is available at:
http://www.cap.org.uk/~/media/Files/CAP/Help%20notes%20new/BCAP_Advertising_Guidance_Notes_1.ashx
 (Exaggeration), but was not found to be in breach.

2. Not upheld

We noted the terms and conditions explained that customers could contact call centre staff to have the details of the Brand Match calculation on their shop explained. However, we also noted that Brand Match was a price promise, not a lowest price claim, and that the ads had not included comparative pricing information (unlike, for example, ads that included a "basket of goods" comparison). Because the ads had not included an objective price comparison that was capable of verification, we considered that information regarding how the Brand Match calculation (which was done at the till) could be verified did not need to be included in the ads. We therefore concluded the ads did not breach the Code.

On this point, ads (a), (b) and (c) were investigated under CAP Code (Edition 12) rules  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  and  3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price.  (Comparisons with identifiable competitors), but were not found to be in breach.

On this point, ad (d) was investigated under BCAP Code rules  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  and  3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price.  (Comparisons with identifiable competitors), but was not found to be in breach.

3. Not upheld

We noted that the "Live Well For Less" website address was provided in the ads and that this website contained a prominent Brand Match tab. We noted that the two options presented when the cursor was moved over the tab were "FAQ" and "Terms and Conditions". Although the ads did not provide the full URL of the terms and conditions page of the website, we considered that consumers who had seen one of the Brand Match ads and had been directed to the site would easily navigate to the Brand Match tab and the terms and conditions therein. We therefore concluded the ads were not misleading.

On this point, ads (a), (b) and (c) were investigated under CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 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 Broadcasters must hold documentary evidence to prove claims that the audience is 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.  (Qualification), but were not found to be in breach.

On this point, ad (d) was investigated under BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.2 3.2 Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
 (Misleading advertising) and  3.11 3.11 Qualifications must be presented clearly.
BCAP has published Guidance on Superimposed Text to help television broadcasters ensure compliance with rule  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  . The guidance is available at:
http://www.cap.org.uk/~/media/Files/CAP/Help%20notes%20new/BCAP_Advertising_Guidance_Notes_1.ashx
 (Qualification), but was not found to be in breach.

4. Upheld

We understood that the term that allowed Sainsbury's to withdraw products from Brand Match had not been used to date and was intended only to protect them from technical anomalies in the information obtained from competitors' stores. Because we had no reason to believe that this term had been used in a way that undermined or contradicted the Brand Match price promise, we did not consider the term sufficiently significant to warrant inclusion in the ads.

We considered, however, that consumers would expect Brand Match to be widely available across Sainsbury's stores and we therefore considered that information regarding non-participating stores warranted inclusion in the ads. Although we understood that this information had now been added to all press ads, we considered that its omission from ads (a), (b) and (c) meant that they were likely to mislead.

We considered the qualification in the TV ad, "Excludes Locals, Centrals and online. Selected stores excluded" was ambiguous as it referred specifically to "Locals" and "Centrals" but then in the following sentence used the generic term "stores", which we considered consumers may not understand referred only to the "main estate" stores. Although we understood that details of the main estate stores that were not participating were included on the website, we considered this should have been made clearer to consumers in the ad. Because we considered the qualification regarding participating stores was unclear and ambiguous, we concluded the TV ad was misleading.

On this point, ads (a), (b) and (c) breached CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 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 Broadcasters must hold documentary evidence to prove claims that the audience is 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.  (Qualification) and  3.11 3.11 Qualifications must be presented clearly.
BCAP has published Guidance on Superimposed Text to help television broadcasters ensure compliance with rule  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  . The guidance is available at:
http://www.cap.org.uk/~/media/Files/CAP/Help%20notes%20new/BCAP_Advertising_Guidance_Notes_1.ashx
 (Exaggeration).

On this point, ad (d) breached BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.2 3.2 Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
 (Misleading advertising),  3.11 3.11 Qualifications must be presented clearly.
BCAP has published Guidance on Superimposed Text to help television broadcasters ensure compliance with rule  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  . The guidance is available at:
http://www.cap.org.uk/~/media/Files/CAP/Help%20notes%20new/BCAP_Advertising_Guidance_Notes_1.ashx
 (Qualification) and  3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service.  (Exaggeration).

5. Not upheld

We noted from the evidence made available to us that the Brand View data was obtained on a daily basis and that this was done at the same time each day. Although we understood the system did not update automatically throughout the day to reflect changes in competitors pricing, we did not consider that this invalidated the claim that prices were checked "on the same day". We therefore concluded the ads were not misleading.

On this point, ads (a), (b) and (c) were investigated under CAP Code (Edition 12) rules  3.1 3.1 Advertisements 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  3.11 3.11 Qualifications must be presented clearly.
BCAP has published Guidance on Superimposed Text to help television broadcasters ensure compliance with rule  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  . The guidance is available at:
http://www.cap.org.uk/~/media/Files/CAP/Help%20notes%20new/BCAP_Advertising_Guidance_Notes_1.ashx
 (Exaggeration), but were not found to be in breach.

On this point, ad (d) was investigated under BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  (Misleading advertising),  3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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  3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service.  (Exaggeration), but was not found to be in breach.

Action

The ads must not appear or be broadcast again in their current form. We told Sainsbury's to make clear in the ads the limitations on participating stores.

BCAP Code

3.1     3.11     3.12     3.2     3.33     3.35     3.9    

CAP Code (Edition 12)

3.1     3.11     3.3     3.33     3.35     3.7     3.9    


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