Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
Four emails, received in January and February 2018:
a. The first email, received on 3 January 2018, stated "Extra 10% Off ALL Home Sale". Further text stated "SALE CONTINUES - UP TO 50% OFF* HOME + EXTRA 10% OFF*" and "UP TO 70% OFF* FASHION + FURTHER REDUCTIONS". The asterisks did not link to any text.
b. The second email, received on 26 February 2018, stated "Blink and you'll miss it, 40% Off Everything ends tonight". Further text stated "NEW SEASON LAUNCH EVENT ENDS TONIGHT 40% OFF* EVERYTHING". The asterisk did not link to any text.
c. The third email, received on 27 February 2018, stated "Hurry! 40% Off EVERYTHING Event ends TONIGHT". Further text stated "Due to higher than expected order volumes, some of you may have experienced difficulty online over the weekend in placing your orders" and "OFFER HAS BEEN EXTENDED ENDS MIDNIGHT TONIGHT 40% OFF* EVERYTHING". The asterisk did not link to any text.
d. The fourth email, received on 28 February 2018, stated “Decorating Event with Up to 50% Off starts today”. Further text stated “DECORATING EVENT Starts Today” and “50% OFF* Wallpaper and Fabric, 40% OFF* Curtains, 30% OFF* Furniture, 30% OFF* Paint”. The asterisks did not link to any text.
Issue
The complainant challenged whether:
1. the savings claims in the ads were misleading and could be substantiated;
2. ad (b) breached the Code because they understood the closing date had been extended; and
3. the ads failed to state significant limitations and qualifications, because the asterisks next to the savings claims did not link to any text.
Response
1, 2 & 3. Laura Ashley Ltd said that their promotional calendar was planned six months in advance and there was usually a one- to two-day break between one promotion ending and another one starting. They said, however, that this might have changed due to unforeseen circumstances, such as the extension of the 40% off everything event by one day which took place due to difficulties experienced with their website. They provided a copy of a dialogue with their technical team, who understood that customers had experienced problems with the checkout page meaning they were not able to make payment securely.
They provided pricing information history of 16 products: four each from their Fabric, Wallpaper, Paint and Ready Made Curtains stock. The pricing history dated from 2 November 2017 to the end of their Decorating Event on 11 March 2018. They also said that 10% of their products in the “UP TO 50% OFF* HOME” and “UP TO 70% OFF* FASHION + FURTHER REDUCTIONS” sales events were given the discount quoted.
Laura Ashley said that the asterisks on their promotional text in their emails were not linkable to anything but said they would amend their ads to ensure there was a hyperlink at the bottom of the emails to direct consumers to the detailed terms and conditions on their website. They provided copies of the terms and conditions for each of the promotions.
Assessment
1. Upheld
The ASA considered that consumers would understand that a significant proportion of items included in the “UP TO 50% OFF* HOME” and “UP TO 70% OFF* FASHION + FURTHER REDUCTIONS” would be discounted by both 50% and 70% respectively. We also considered that consumers would understand that all products within the “HOME” range would be included in the “UP TO 50% OFF*” sale and all products within the “FASHION” range would be included in the “UP TO 70% OFF*” sale. In addition, we considered that they would understand from those claims and the other discounted claims, such as “40% OFF* EVERYTHING”, that by purchasing an item with the discount they would be making a genuine saving against the usual selling price of the product within that category at the time the ads appeared.
We noted Laura Ashley's comments that there was usually a one- to two-day break between promotions and noted from the promotional calendar that the longest period of time where an item was offered at full price between promotions was three days. The pricing history showed each of the products at full price for a total of two days between 2 November 2017 and 28 January 2018, with discounts between 10% and 60% having been applied for the rest of the period. The products were then priced at full price for three days between 29 January 2018 and 31 January 2018 before the 25% off home event, for which a discount was applied to each of the 16 products. They were then priced again at full price for a further three days between 19 February 2018 and 21 February 2018, before a 40% off discount was applied to each product for the 40% off everything event on 22 February 2018.
The pricing information also showed that once the 40% off everything event ended on 28 February 2018, each of the products on which we had been provided information that fell within the Fabric and Wallpaper sections, were given a 50% discount, their Ready Made Curtains remained at 40% off and their Paint dropped to 30% off.
Consequently, we did not consider that the higher prices were the prices at which items were usually sold at the time the ads appeared or that the savings claims represented genuine savings against the usual selling prices of the products.
In addition, we had been given no information to demonstrate that a reasonable proportion of items were discounted at both 50% in the “UP TO 50% OFF*” event and 70% in the “UP TO 70%* FASHION + FURTHER REDUCTIONS” event.
Given the above, we concluded that the savings claims had not been substantiated and were therefore misleading.
On that point, the ads breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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
3.7
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).
2. Not upheld
We considered consumers were likely to understand from ad (b) that the sale would finish at the end of 26 February 2018, which was the date the email was sent, and that they would therefore need to make a purchase before that time in order to benefit from the sale. We noted the text in the email “Blink and you'll miss it, 40% Off Everything ends tonight”, and considered that reinforced the impression that consumers would have to act very quickly to take up the offer. We understood, however, that the “40% OFF* EVERYTHING” sale in ad (b) was extended another day.
The CAP Code stated that closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter make it necessary and either not to change the date would be unfair to those who sought to participate within the original terms, or those who sought to participate within the original terms will not be disadvantaged by the change.
We acknowledged Laura Ashley’s comments that the “40% OFF* EVERYTHING” had been extended due to difficulties with their website and understood from what their technical team had discovered that customers were experiencing issues with making secure payments. We considered those circumstances, based on the evidence provided, were unavoidable and beyond the control of Laura Ashley and that had they not changed the closing date, those who sought to participate within the original terms and were unable to would, in fact, have been disadvantaged had the closing date not been extended.
We noted that the text within the email stated that the closing date had been extended because customers may have experienced difficulty “Due to higher than expected order volumes”, which we understood was not the case. Had that actually been the reason for the extension, we considered that would not have been an unavoidable circumstance beyond the control of Laura Ashley. However, we considered that the underlying issues experienced with the checkout page were unavoidable and beyond their control, as above, and therefore concluded that the promotion had not breached the Code.
On that point, we investigated ad (b) under CAP Code (Edition 12) rule 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: 4e (Closing date) but did not find it in breach.
3. Upheld
As in point 1, we considered that consumers would understand that all products within the “HOME” range would be included in the “UP TO 50% OFF*” sale and all products within the “FASHION” range would be included in the “UP TO 70% OFF*” sale.
We noted from the terms and conditions of ad (a) for example, that the “UP TO 70% OFF* Fashion” applied to selected items within the fashion range, so it was likely that some fashion items were not included in the sale altogether. Moreover, the terms and conditions of ad (d) stated “Discount applies to selected products” in the 50% OFF* Wallpaper and Fabric sale, so it was likely that there were products within that range that consumers would expect were discounted but were not included at all.
We acknowledged that Laura Ashley said they would add a link to their terms and conditions in their future emails. However, because consumers were likely to understand that a discount would be applied to each product within the discounted category and that was not the case, we considered that those conditions which clarified that some items were excluded should have been made more prominent in the ad than an asterisk to the terms and conditions.
In addition, the terms and conditions of ad (a) stated “Ends Sunday”, and because that condition was significant to a consumer’s decision to participate, we considered that it should also have been made clear in the ad.
Therefore, because the ads failed to state the significant limitations and qualifications of the sales events, we considered that they were misleading.
On that point, the ads breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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) 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:
(Significant conditions for promotions).
Action
The ads must not appear again in their current form. We told Laura Ashley Ltd to ensure that their future advertising did not make savings claims unless they were able to substantiate those claims against the usual selling price of the products. We also told them to ensure that the significant conditions and exclusions of their offers were made clear.
