Background
Summary of Council decision:
Three issues were invested, all were Upheld.
Ad description
An offer on the deals website www.kgbdeals.co.uk, stated "For just £27 you and your friends can party like the stars with an exclusive VIP club experience worth up to £386 at Miabella. Save up to 93% on a VIP table for six people with three jugs of cocktails to share or two bottles of prosecco, table service and three shots each". The ad went on to state that "cocktail jugs include a choice of" long island ice tea, sex on the beach, mai tai and purple rain, and that "shots include a choice of" peach schnapps, apple schnapps, strawberry schnapps, apple sourz, sambuca and tequila.
Issue
The complainant, who had purchased the deal, challenged whether the advertiser could substantiate:
1. that the deal was worth "up to £386";
2. that "two bottles of prosecco" could be chosen instead of the cocktails; and
3. that there was any choice of cocktails or shots.
Response
1. kgb (UK) Ltd (kgb) provided an e-mail they had received from the merchant prior to the start of the promotion, which stated that a VIP table was priced at £250, that shots were priced at £4 each and that a bottle of prosecco was priced at £32, and that that had been the case for the previous 28 days. They said they believed that substantiated the claim that the deal was worth "up to £386".
2. kgb said they had been informed that the merchant had agreed to provide two bottles of prosecco as an alternative to three jugs of cocktails.
3. kgb said they understood that a range of shots and cocktails had been available as part of the deal although, having reviewed the Merchant Order Form completed by Miabella, they accepted that the choice of shots was limited to Apple Sourz and schnapps.
Assessment
1. Upheld
The ASA noted that kgb had provided an e-mail from the merchant advising them of the prices at which the various elements of the deal were sold prior to the promotion and that, based on these prices, the value of the deal would have been "up to £386". However, we noted that no evidence had been provided to show that the products had been generally sold at the prices quoted prior to the promotion. We also noted that schnapps, Apple Sourz and prosecco did not appear on the drinks menus currently displayed on the merchant's website, and that tequila and sambuca shots were priced at £2.50. We considered that the claim "worth up to £386" had not been substantiated and concluded that it was misleading.
On this point, the ad 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), 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. (Prices) and 3.40 3.40 Price comparisons must not mislead by falsely claiming a price advantage. Comparisons with a recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold. (Price comparisons).
2. Upheld
We noted that kgb believed prosecco was available as part of the deal but we considered that the claim had not been substantiated and concluded that it was misleading.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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. Upheld
We noted that kgb accepted that the merchant had only agreed to provide Apple Sourz and schnapps shots as part of the deal, and not tequila and sambuca as stated in the offer. We also noted that kgb had not provided any evidence that a choice of cocktails or shots was actually available to those using the deal. We considered that the claim had not been substantiated and concluded that it was misleading.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
Action
The ad must not appear again in its current form. We told kgb to ensure that statements of value were an accurate representation of the price at which products were generally sold and that they held evidence to substantiate them. We told them to ensure offers were represented accurately in future.
