Background

Summary of Council decision:

Six issues were investigated, of which two were Upheld, two were Upheld in part and two were Not upheld.

Ad description

A TV ad, an internet video, claims on the www.sainsburys.co.uk website (which also included the same video), press advertising, a radio ad, a leaflet, an in-store poster and a promotional e-mail:

a. The TV ad showed a father and son in a kitchen. The son collected several different items from around the kitchen and placed them on the table. The ad included a voice-over that 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". Small text on screen included "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 on the same day you will get a coupon for the difference ... For full terms, conditions and all exclusions visit sainsburys.co.uk/livewellforless".

b. The internet video showed images of several different branded products throughout. The voice-over stated "Can you spot the difference? No? We can. In fact, we'll spot the difference 24 hours a day, seven days a week so you don't have to. Spend at least twenty pounds in store in one go and we promise you won't pay more for brands than you would at Asda or Tesco ...". Text on screen stated "You won't pay more for brands than at Asda or Tesco when you shop in store". The voice-over continued "... Yep, that applies to comparable branded products in your basket. We'll even match any offers that Asda or Tesco might be running. And if the branded products in your shop do happen to be cheaper at Asda or Tesco on that day, we'll let you know and give you a voucher for up to ten pounds back there and then at the till ...". Smaller on-screen text included "... For full terms, conditions and all exclusions visit sainsburys.co.uk/livewellforless".

c. The brand match page of the Sainsburys.co.uk website was headlined "Save at Sainsbury's with Brand Match". Text included "When you shop instore with us you'll never pay more for brands than at Asda or Tesco ... How does it work? We compare the price of brands against what Asda and Tesco are charging for them that day, including deals. When you spend £20 or more with at least one comparable branded product in your basket, we'll work out any difference in price. If the same branded shop could have been bought for less at Asda or Tesco, we'll give you a coupon* for the difference when you checkout". Small print included "*... Brand Match applies to comparable brands. For a definition of comparable brands and excluded products see Terms and Conditions".

d. The press ads, which appeared in both regional and national newspapers, included small print that stated "... MINIMUM SPEND £20. BUY AT LEAST ONE COMPARABLE BRANDED PRODUCT (EG. 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 ... FOR TERMS, CONDITIONS AND ALL EXCLUSIONS SEE WWW.SAINSBURYS.CO.UK/LIVEWELLFORLESS. YOU CAN LIVE WELL FOR LESS THAN YOU THOUGHT AT SAINSBURY'S. BASED ON PRICE PERCEPTION DATA NOVEMBER 2011":

(1) was headlined "Having our own deals is not enough for us. So we’ve got Tesco’s and Asda’s too. We call it Brand Match". Further text stated "We supermarkets do like our deals - Half Price, 3 for 2 and so on. And we know you like them too. The great thing about Brand Match is that when you shop at Sainsbury’s, you know you’re getting the best deals around because we match deals* on brands at Tesco or Asda";

(2) was headlined "It means the end of shopping around. How good is that?". Further text stated "The brilliant thing about Sainsbury’s Brand Match is that you don’t have to do a thing. We'll match Tesco's and Asda's prices and deals* on brands. And if there's a difference in the cost of all of the branded items in your basket or trolley, we'll give you a coupon at the till there and then. Or even better, we'll tell you how much you saved at Sainsbury's".

e. The radio ad stated "Sainsbury's brand match is great because it's simple. We check the total price of the brands in your basket against Asda and Tesco. If we're more expensive we'll give you a coupon at the till for the difference. No messing around with receipts or websites, no messing full stop ... Minimum spend twenty pounds, buy at least one comparable branded product ... For terms, conditions and all exclusions see Sainsburys.co.uk/livewellforless. You can live well for less than you thought at Sainsbury's. Based on price perception data".

f. The leaflet included the headline text "Sainsbury's BRAND MATCH It's simple. You won't pay more for brands than at ASDA TESCO". Smaller text below stated "If your same shop is more expensive we will give you a coupon for the difference. For full terms, conditions and exclusions go to the customer service desk". Terms and conditions were listed inside and included "... 17. We match Sainsbury's prices and deals to prices and deals collected from asda.co.uk and tesco.com for Comparable branded products using independent data provided by Brandview.co.uk ... 19. We do not match against store specific discounts at Asda or Tesco. In the unlikely event that a Comparable product is not visible on asda.co.uk or tesco.com we will not be able to include it in the comparison for Sainsbury's Brand Match ...".

g. The in-store poster stated "It's simple. You won't pay more for brands than at ASDA TESCO".

h. The promotional e-mail had the subject heading "Brand Match means you won't pay more on brand deals than at Asda or Tesco". Text in the body of the e-mail included "Sainsbury's Brand Match Shop instore with us and you'll never pay more for brands than Tesco and Asda. Simple ... Terms apply*". Small print included "* ... Minimum spend £20 ...".

Issue

The ASA received 20 complaints, from Tesco stores Ltd (Tesco) and 19 members of the public:

1. Tesco challenged whether the claims in ads (a), (b) and (c) that consumers would not pay more for brands than at Asda or Tesco were misleading, because the coupon customers received would, in some instances, confirm that they would in fact have paid less for the branded goods at Asda or Tesco. Members of the public challenged whether ads (a), (c), (d), (e), (f), (g) and (h) were misleading for the same reason. Some of the complainants commented that there were various restrictions on the coupons.

2. Tesco also challenged whether ads (a), (b) and (c) were misleading, because they believed the ads did not make sufficiently clear that the offer applied only to comparable brands. They said each retailer stocked exclusive branded products that were not available elsewhere.

3. Members of the public challenged whether ads (a), (c), (d) and (h) were misleading, because they did not make clear any saving was calculated across all of the brands in an individual's basket and that the price of those brands that were cheaper at Sainsbury's would be offset against the total branded shop.

4. Members of the public challenged whether ads (a), (c), (f) and (g) misleadingly implied the brand match applied to all branded purchases, whereas it was available only to customers who spent £20 or more.

5. A member of the public challenged whether the claim "Save at Sainsbury's with Brand Match" in ad (c) was misleading, because he understood prices were matched rather than bettered.

6. Another member of the public challenged whether ads (a), (f) and (g) were misleading, because they did not make clear the brand match applied only to products that appeared on the Asda and Tesco websites.

Response

J Sainsbury plc (Sainsbury's) said they strongly believed the brand match was a genuine, clear and concise offer and one that relied on a very simple process. They said it was straightforward for consumers and had been well received, with nearly 100 million coupons issued; they believed that indicated consumers understood the offer from the advertising.

1. They said the claim was correct because if Tesco or Asda were identified as being cheaper on the day a customer did a qualifying shop, Sainsbury's refunded the difference so consumers would not pay more for brands. The ads were simply saying that Sainsbury's price matched on branded products at two of their main competitors and that they immediately gave a money-off coupon if the branded items in a customer's basket could have been bought for less at either Tesco or Asda. They said the coupon could be used directly off the customer's next shop but not online, which was made clear in ads (a), (b), (c), (d), (f) and (h) via the text "Brand match excludes … online". Sainsbury's said ad (e) stated "For terms, conditions and all exclusions see Sainsburys.co.uk/livewellforless ..." and ad (g) was part of their in-store advertising, which was never used in isolation from other material that gave details of the minimum spend terms. They believed it was not useful to consumers to provide details of conditions in such ads and said the text "You won't pay more …" did not suggest Sainsbury's was always cheaper (although it may be) but that it was at least the same.

Sainsbury's said they did not believe the text "… live well for less" gave the impression that they would be cheaper than their competitors on brands. They emphasised that the ads made clear that Sainsbury's would refund any difference in price and said the concept of the scheme was also made very clear in the name "brand match". They said it was difficult to see how consumers would have the impression that Sainsbury's were claiming to be cheaper than Asda or Tesco unless they ignored key elements of the ads. They said the "… live well for less" strap line had formed part of all of their advertising, rather than only that for the brand match scheme, for over a year and their terms and conditions clearly stated that customers could "live well for less than they thought at Sainsbury's based on customer perception data". They said it was clear from research that customers perceived branded products sold at Sainsbury's to be more expensive than those sold by their competitors and brand match was one way of helping to show that they were not as expensive as consumers might think. They said they did not, however, at any point suggest they would be cheaper than Asda or Tesco. The "brand match" title made clear they were simply matching prices and the fact they issued coupons if they were more expensive meant consumers could "live well for less than they thought at Sainsbury's".

They said the ad (c) included the text "Save" for the same reason; because consumers might be surprised that in some instances products were more expensive at their competitors' stores and that they could receive a coupon that indicated that their branded shop was cheaper at Sainsbury's. Sainsbury's said ad (c) provided full details of how the scheme operated. However, they acknowledged the headline text "Save at Sainsbury's with Brand Match" could cause confusion and they said they would therefore change the positioning of the statement.

In relation to ad (a), Clearcast said they believed the brand match offer was very clear and the ad was not misleading. They said customers were advised whether the other two supermarkets were cheaper and, if so, Sainsbury's would match their prices.

In relation to ad (e), the RACC said they were satisfied with the substantiation Sainsbury's had provided to them prior to the ad being cleared. They endorsed Sainsbury's response.

2. Sainsbury's said that the fact the offer applied only to brands was made very clear in all of their advertising as well as in the name of the scheme. They pointed out that ad (a) stated "Buy at least one comparable branded product. 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 ... For full terms, conditions and all exclusions visit sainsburys.co.uk/livewellforless" and that the website (also ad (c)) included a prominent tab that related to the brand match and defined comparable brands as being those that were identical to one another. It stated that any differences including, but not limited to, pack size, colour, flavour or variety meant that products that were non-comparable and own label products were excluded. Sainsbury's said the internet video appeared in the centre of the website, directly above text that stated "How does it work?" and further text that stated "We compare the price of brands against what Asda or Tesco are charging for them that day, including deals. When you spend £20 or more with at least one comparable branded product in your basket, we'll work out any difference in price. If the same branded shop could have been bought for less at Asda or Tesco, we'll give you a coupon* for the difference when you check out". That text was linked to small print that stated "… Brand match applies to comparable brands. For a definition of comparable brands and excluded products see Terms and Conditions".

In relation to ad (a), Clearcast said they considered the text "Buy at least one comparable branded product …" was a suitable qualification to the offer.

3. Sainsbury's said ads (a), (d) and (h) all clearly referred to a "branded shop" in the qualifying text. Ad (b) appeared on their website (ad (c)), which made clear below the video how the brand match worked and also clearly referred to a "branded shop". They said that, in addition, their online terms and conditions gave a very clear example and stated "if the exact basket of comparable goods could have been bought cheaper, on the same day, at Asda or Tesco then you will qualify for a Sainsbury's Brand Match Coupon for the difference in price between Sainsbury's and the cheapest competitor". The example in the terms and conditions included several branded products, details of the prices of those products at Sainsbury's, Tesco and Asda and details of the overall price difference versus Sainsbury's as well as notes related to multi-buy and other offers. They said ad (c) also included a tab that linked to frequently asked questions about how to qualify for the brand match and text within that tab stated "Sainsbury's Brand Match is a guarantee that if you could have bought an identical basket of branded goods (same size, flavour, colour etc) more cheaply in Asda or Tesco we will give you a coupon at the till for the difference there and then, at the end of the transaction. The value of the coupon we give will be the difference between the Sainsbury's price for your basket and the cheapest price in Asda or Tesco for an identical basket bought on the same day". They said all of their advertising made clear references to the offer being related to a coupon for the difference in price, which made very clear, along with the comparison table in the terms and conditions, that the calculation would be offset against the total branded shop. Sainsbury's believed that could not have been made clearer and that the ads therefore were not misleading. They also said that, since the ASA had contacted them, they had provided an additional mechanism on their new website, which allowed consumers to check calculations made on their recent shops to see why they were given a coupon or why they did not receive one.

In relation to ad (a), Clearcast said they considered it made clear, via the on-screen text "… you will get a coupon for the difference …", that the offer was calculated across the same branded shop as the other supermarkets.

4. Sainsbury's said that ads (a), (c) and (f) clearly stated "minimum spend £20" and ad (c), which offered more detail due to the nature of the medium, also said "You need to spend £20 or more in one transaction in a main supermarket …". They said ad (g) was one component of the overall in-store advertising package that was never used in isolation and that all of the other elements clearly showed the minimum spend terms. They said that also could not have been made clearer and that the ads therefore were not misleading.

In relation to ad (a), Clearcast said they considered the on-screen text "minimum spend £20" suitably qualified the offer.

5. Sainsbury's said the claim referred to the saving a customer would make when their comparable branded shop was cheaper at Sainsbury's. For example, if a consumer's qualifying shop would have cost £40 at Tesco and Asda but was £30 at Sainsbury's, they would receive a coupon informing them that their shop was £10 cheaper at Sainsbury's. They said ad (c) stated "… or even better, we'll tell you how much you saved at Sainsbury's" and they therefore did not believe it was misleading.

6. They said the terms included in the leaflet, ad (f), stated "we match deals … collected from Asda.co.uk and Tesco.com". Ad (a) referred viewers to their website, on which a tab clearly referred consumers to the terms and conditions, where it was, again, made very clear. Sainsbury's reiterated that ad (g) was one component of the overall in-store advertising package that was never used in isolation. They said they strongly believed that the ads did not breach the Code.

In relation to ad (a), Clearcast said they considered the on-screen text "For full terms, conditions and all exclusions visit sainsburys.co.uk/livewellforless" was sufficient to advise viewers that there was significant exclusions to the promotion, which were fully explained on the website.

Assessment

1. & 5. Upheld (in relation to ads (a), (b), (c), (d (1) and (2)), (f), (g) and (h) only)

The ASA noted that customers whose comparable branded shop was more expensive at Sainsbury's than at Asda or Tesco on a particular day would receive a money-off coupon, which could be redeemed subsequently. We also noted, however, consumers would need to make a further purchase in order to redeem the coupons, which were limited to a value of £10, and had to be redeemed within two weeks. We noted that the ads each stated that the promotion related to a price match offer for brands and that ads (a), (c), (d), (f) and (h) included text to explain that consumers would receive a coupon if their qualifying shop was more expensive at Sainsbury's; the voice-over in ad (b) also explained that. We considered, however, the claims that consumers would not pay more for brands than at Asda or Tesco were likely to be interpreted as suggesting they would not pay more at the time of their shop. We noted that consumers might pay more, however, and would then receive the coupon for the difference, and therefore considered the explanatory text and voice-over in ad (b) contradicted, rather than clarified, the absolute claims that consumers would not pay more for brands at Sainsbury's. We noted that ad (g) did not include any text to explain how the brand match worked and considered it was also likely to be interpreted as suggesting consumers would not pay more at the time of their shop, which we noted was not the case.

We noted that ads (d) and (e) did not explicitly state that consumers would not pay more for brands at Sainsbury's but that ads (d (1) and (2)), and the other ads, included the reference "… live well for less", which we considered, in the context of ads about the brand match, was likely to be interpreted as suggesting branded goods would be cheaper at Sainsbury's, and therefore that consumers would also not pay more. We acknowledged that the press ads included the small print "YOU CAN LIVE WELL FOR LESS THAN YOU THOUGHT AT SAINSBURY'S. BASED ON PRICE PERCEPTION DATA NOVEMBER 2011". In the context of the overall impression of the ads, however, we considered that text was not in sufficiently close proximity to the "… live well for less reference" to provide clear qualification and that it therefore contradicted the overall impression of the ads. Similarly, we considered the claim "Save at Sainsbury's with Brand Match" in ad (c) was likely to be interpreted as suggesting branded goods would be cheaper at Sainsbury's. We understood, however, the prices were only matched rather than bettered and that consumers would in some instances pay more in order to receive the coupon for the difference. We concluded that ads (a), (b), (c), (d (1) and (2)), (f), (g) and (h) were misleading.

We noted, however, that in ad (e) the reference "… live well for less" was part of the same sentence as, and immediately followed by, "… than you thought at Sainsbury's. Based on price perception data". We considered, in the context of an ad that did not explicitly state that consumers would not pay more for brands at Sainsbury’s, "… live well for less" was not likely to be interpreted as suggesting branded goods would be cheaper at Sainsbury's. We therefore concluded that ad (e) was not misleading.

On these points, ad (a) 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),  3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification) and  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.  (Comparisons with identifiable competitors). Ads (b), (c), (d (1) and (2)), (f), (g) and (h) 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 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 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.  (Comparisons with identifiable competitors) 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:  (Sales promotions). We investigated ad (e) 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),  3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification) and  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.  (Comparisons with identifiable competitors) but did not find it in breach.

2. Not upheld

We noted that Tesco said each retailer stocked exclusive branded products that were not available elsewhere. While we acknowledged that, we considered ads (a), (b) and (c) made sufficiently clear that the brand match applied to comparable branded products only. Ad (a) included on-screen text that stated "Buy at least one comparable branded product", ad (b) included a voice-over that stated that the match applied to "… comparable branded products in your basket" and ad (c) included text that stated "… with at least one comparable branded product in your basket". We also noted that all three ads made clear references to "brands" and that ads (a) and (b) directed consumers to the website (ad (c)), where they would find a definition of "branded products" and a list of excluded product categories. We considered the overall impression of the ads was such that consumers were likely to understand that the branded products they selected would need to be an exact match to those available at Tesco and Asda in order to qualify. We therefore concluded that the ads were not misleading on that point.

On this point, we investigated ad (a) 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),  3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification) and  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.  (Comparisons with identifiable competitors) but did not find it in breach. We investigated ads (b) and (c) 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),  3.9 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 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.  (Comparisons with identifiable competitors) 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:  (Sales promotions) but did not find them in breach.

3. Upheld (in relation to ads (a), (d (1)) and (h) only)

We noted ads (a), (d (1) and (2)) and (h) included a link that directed consumers to the website (ad (c)), which gave further details of how the brand match worked and a table that related to an example shop, both in the 'frequently asked questions' and in the terms and conditions. We considered it was a significant condition of the promotion that any discount was calculated so the price of those brands that were cheaper at Sainsbury's would be offset against the overall comparison and noted that was not made clear in the ads. We considered consumers were likely to interpret ads (a), (d (1)), if seen alone, and (h) as suggesting that, if goods were more expensive at Sainsbury's, they would receive the difference between the comparable branded product at Sainsbury's and the cheapest named competitor on each product, rather than the total difference less the difference from the brands that were cheaper at Sainsbury's. We also considered the ads did not make clear that the comparable branded products would not be matched individually against the cheapest competitor's price but, rather, against the total price of the same basket purchased from either competitor and that the competitor that was the cheapest overall would be the one the total price of the comparable branded basket was compared against.

We therefore concluded that ads (a), (d (1)) and (h) were misleading.

We noted ad (c) included further explanation of how the brand match worked and considered that, particularly the text "we'll work out any difference in price", made sufficiently clear that the price of those brands that were cheaper at Sainsbury's would be offset against the total branded shop. Similarly, we noted that ad (d (2)) included explanatory text, including "… And if there's a difference in the cost of all of the branded items in your basket or trolley, we'll give you a coupon at the till there and then", which we also considered made sufficiently clear how the brand match worked. We concluded that ads (c) and (d (2)) were not misleading. .

On this point, ad (a) 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),  3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification) and  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.  (Comparisons with identifiable competitors). Ads (d (1)) and (h) 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 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 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.  (Comparisons with identifiable competitors) 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:  (Sales promotions). We investigated ads (c) and (d (2)) 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),  3.9 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 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.  (Comparisons with identifiable competitors) 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:  (Sales promotions) but did not find them in breach.

4. Upheld

We noted ads (a), (c) and (f) included details of the requirement to spend £20 in order to qualify for the brand match. We also noted, however, each of the ads included the absolute claims "You won't pay more for brands than you would at Asda or Tesco. We'll even match their deals", "When you shop instore with us you'll never pay more for brands than at Asda or Tesco" and "Sainsbury's BRAND MATCH It's simple. You won't pay more for brands than at ASDA TESCO". We therefore considered the ads were likely to be interpreted as suggesting the brand match applied to all branded purchases and not only to those where over £20 was spent. We considered the qualifying text contradicted, rather than clarified, that impression. We noted ad (g) also included an absolute claim, "It's simple. You won't pay more for brands than at ASDA TESCO", and did not provide details of the significant condition that the brand match applied only to purchases of over £20. We concluded that the ads were misleading.

On this point, ad (a) 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),  3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification) and  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.  (Comparisons with identifiable competitors). Ads (c), (f) and (g) 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 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 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.  (Comparisons with identifiable competitors) 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:  (Sales promotions).

6. Not upheld

We noted ad (f) included details of the terms and conditions; it stated "We match Sainsbury's prices and deals to prices and deals collected from asda.co.uk and tesco.com for Comparable branded products using independent data provided by Brandview.co.uk ..." and "We do not match against store specific discounts at Asda or Tesco. In the unlikely event that a Comparable product is not visible on asda.co.uk or tesco.com we will not be able to include it in the comparison for Sainsbury's Brand Match ...". Although we noted the ad stated "… You won't pay more for brands than at ASDA TESCO", we considered it was reasonable to base a comparison on prices that appeared on the competitors' websites and noted that was made sufficiently clear in the ad.

We noted that ads (a) and (g) also stated "You won't pay more for brands than you would at Asda or Tesco". We noted that they did not state that the comparison was carried out on the competitors' websites but that ad (a) directed consumers to the website, where the terms and conditions of the brand match could be located. Nevertheless, in particular because we understood Asda and Tesco’s website prices were generally the same as those in their stores, we considered that condition was not sufficiently significant to necessitate specific inclusion in the ads themselves. We therefore concluded that the ads were not misleading on this point.

On this point, we investigated ad (a) 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),  3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification) and  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.  (Comparisons with identifiable competitors) and ads (g) and (f) 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),  3.9 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 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.  (Comparisons with identifiable competitors) 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:  (Sales promotions) but did not find them in breach.

Action

The ads must not appear again in their current form. We told Sainsbury's to ensure future ads did not imply consumers would not pay more, or would save money, if that was not the case. We also told them to ensure all significant conditions of promotions were made clear in future.

BCAP Code

3.1     3.10     3.2     3.33    

CAP Code (Edition 12)

3.1     3.3     3.33     3.9     8.17    


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