Two ads seen on www.milletsports.co.uk in July and August 2017:
a. A product listing for a tennis racket bag stated “Was £30.00 [crossed out] Now £6.00 Save 80%”.
b. A product listing for tennis racket grips stated “Was £60.00 Now £37.00 (Save 38%).
The complainant, who had ordered the products and was told subsequently that they were out of stock, challenged whether the ads were misleading.
JD Sports Fashion plc t/a Millet Sports, said that they were concerned to hear of the complainant’s difficulties purchasing goods from the website. They said that at the times the ads were seen, the each item in question was one of the few remaining items available in stock. Due to various stock movements in their warehouse, the items were not located in the correct area of the warehouse and therefore the picking process registered that the items were out of stock. As the items could not be picked, the complainant’s orders were rejected. They said the terms and conditions on the website explained that an order was not accepted until certain checks had been made and if an item happened to be out of stock, the customer would be notified and the order would be declined. When it appeared that the items ordered by the complainant were out of stock, Millet Sports had taken prompt action to update the website accordingly, ahead of the next scheduled automatic refresh.
Millet Sports said that they would put measures into place to avoid causing further disappointment to customers in future. Their website data was refreshed every few hours in an attempt to display current availability and price information. However, it was not possible to provide real time information on the website, which meant that sometimes orders had to be cancelled if they were placed before the website was updated, particularly when there was a very low volume of stock for a particular item.
Millet Sports said that the stock in question was in fact available at the time the ads were seen. They provided records from their warehouse which they said substantiated this. They therefore believed that the ads were not misleading.
The ASA considered consumers would understand from ads (a) and (b) that the products listed in each ad were currently available to purchase. In the absence of qualifying information, consumers were likely to expect that stock levels on the website were live and included up-to-date information.
We understood the complainant had ordered the item in ad (a) on 19 July 2017 and made a payment to Millet Sports. On 20 July, he received an email saying that the order had been cancelled. We assessed the stock records provided by Millet Sports. These indicated that, between 9 July and 23 July, the item had been in an area of the warehouse that meant that it was not pickable, that is, it did not show up as being available to order. The item in ad (b) had been ordered on 7 August, and the order cancelled by Millet Sports on 9 August. We noted that the records showed that the item had been in an unpickable location between 31 July and 27 September.
While we understood from Millet Sports’ response that at least one of each item was technically in stock in their warehouse at the time the orders were placed, their location within the warehouse caused them to be registered on the system as unavailable and therefore they could not be purchased by customers. We noted that the product in ad (a) had been unavailable for purchase for at least ten days prior to the ad being seen, while the product in ad (b) had been unavailable for purchase for at least eight days prior to the ad being seen. We considered that the ads implied that the products were available to purchase at the time they were seen, and because that was not the case, we concluded that both ads were misleading and breached the Code.
Ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications 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 3.29 3.29 Marketers must monitor stocks. If a product becomes unavailable, marketers must, whenever possible, withdraw or amend marketing communications that feature that product. (Availability).
The ads must not appear again in the forms complained about. We told Millet Sports not to present a product as being in stock if it was not available for consumers to purchase. We told them to ensure that their ads made clear that website information was not live and that stock levels were low, if that was the case.