Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
Two regional press ads for Lidl:
a. The ad, seen in The Daily Record Great Scot newspaper on 5 March 2021, featured a selection of products with a large roundel containing text that stated, "Save over 35% at Lidl". Further text stated, "Lidl £22.92 Tesco £36.39 … Great Scot! At Lidl you can save a lot." The ad featured the webpage address "lidl.co.uk/yousave" and small print at the bottom of the ad which stated, "Subject to availability. Selected stores. Scotland only. Prices correct and checked at tesco.com on 4 March 2021 & prorated based on weight/size. Excludes promotional prices. Prices and packaging may vary. Saving based on these branded and own-brand goods at Tesco vs the cost of an equivalent product meeting the same need at Lidl. Tesco may sell other products at other prices. For full list of products compared please visit lidl.co.uk/yousave".
b. The ad, seen in The Daily Record Great Scot newspaper on 12 March 2021, featured the same selection of products as in ad (a) except it excluded a beef roasting joint. A large roundel contained text stating, "Save over 30% at Lidl". Further text stated, "Lidl £16.82 Tesco £24.39". The ad featured the same small print, except that it stated prices had been checked on 11 March 2021.
Aldi Stores Ltd challenged whether:
1. the claims "Save over 35% at Lidl" in ad (a) and "Save over 30% at Lidl" in ad (b) were general savings claims and could be substantiated; and
2. the basis of the comparisons in ads (a) and (b) were clear. In particular, they believed it was unclear whose products were featured in the ads as only one set of products was shown and they believed it was unclear whether the comparison was between branded versus branded goods, own-brand versus own-brand, or a mix of branded and own-brand goods.
1. Lidl Great Britain Ltd said the ads were specific comparisons of the products depicted and listed in detail in the verification information, with those at Tesco. They were not claims that Lidl was cheaper than Tesco generally, and they did not believe that the average consumer could reasonably reach that conclusion when reading the ads in context. They believed that this interpretation could only be reached by selectively reading certain elements of the copy in isolation, rather than reviewing the headline, copy, image, sub-copy or explanatory information within the context of the ads as a whole, which was, they believed, the natural way that the average consumer would approach an ad of that nature, and consistent with the law.
Both ads appeared in Scotland only, and in each case showed an image of specific products and clearly stated: (i) a Lidl price; (ii) a Tesco price; (iii) the resulting savings claim against products meeting the same need; (iv) text explaining that the savings were based on those branded and own brand goods; (v) other text explaining that Tesco may have sold other products at other prices; and (vi) a link to the full list of products for verification. In that context, they believed it was entirely clear that the savings claims in the ads only related to the products shown and should not be extrapolated to all products sold by Lidl and Tesco.
Lidl emphasised that it was not their intention to make a general savings claim against Tesco within this specific copy. They stated that these ads should be contrasted with the approach taken with their general price positioning ads at the time which did not use specific percentage claims and were based on separate data or substantiation.
They explained that the goods depicted in the ads had been chosen for their Scottish links and the sub-copy "Great Scot! At Lidl you can save a lot" highlighted the Scottish nature of the produce. That sub-copy was stated underneath an image of specific products to which it referred and was immediately followed by the qualifying text which referenced the goods in the image (with the text "these branded and own-brand goods").
The ads featured a URL containing the full product information of the items shown and the products meeting the same need at Tesco. They considered that approach was consistent with industry standard and with the CAP guidance in respect of verification. Both ads included the verification link twice; once within the explanatory small print and again in larger text to the left of that explanatory small print. Lidl provided a copy of the verification page that the URL linked to and that consumers would have been able to access at the time the ads were published.
They maintained that this was an important aspect because it made clear precisely the products compared and their respective pack sizes. As Tesco may have sold other variants, the explanatory text also stated, "Tesco may sell other products at other prices" which underlined the point that the comparison was specific to the goods featured in the ads.They pointed out that the verification page repeated the explanation of the basis of the comparison and included a breakdown of the actual prices and the pro-rated prices based on weight and size of the specific products for the purposes of the comparison.
2. Lidl believed the ads were clear that the comparison was of a mix of branded and non-branded products that were related to Scotland. The ads specifically stated “Saving based on these branded and own-brand goods at Tesco vs the cost of an equivalent product meeting the same need at Lidl. Tesco may sell other products at other prices”. It was therefore clear that the comparison was based on the products depicted, which were a mix of branded and own-brand goods, and which accurately reflected the position as shown in the verification information.
They believed the average consumer would have understood that the comparison included branded products (for example, Rowan Glen, Seriously Strong, Graham's, Highland Spring) and own-brand products. The specific brands were listed on the verification page, as well as the product name. The branded products were the same for Tesco and Lidl. They had included appropriate equivalent Tesco own-brand products for their exclusive to Lidl brands. For example, they compared the price of Tesco's premium own-brand "Tesco Finest" British cold pressed rapeseed oil with exclusive to Lidl's premium brand "Deluxe" Scottish Cold Pressed rapeseed oil.
They also believed it was noteworthy that by including a majority of Tesco own- brand products in the comparisons, the ads ensured that an artificial price advantage was not created by the selection of more expensive branded products at the exclusion of other cheaper own brand products.
Any consumer interested in the detail of precisely which products were compared could access that information (i.e. product, brand, pack-size and price) to verify the savings claims. That verification information, which was accessed via the URL featured in the ads, also included the same text about the claim being based on the mix of branded and non-branded products shown.
Although it was Lidl's usual practice to feature images of both sets of products relevant to the comparison, they were not aware of a rule mandating that and they believed it was not required or necessary in all circumstances. As noted above, it was a long-standing ASA position that the verification information for a comparative claim could be signposted from advertising copy. The best way to verify exactly which products were included in the comparison was to visit the verification page, because, they believed, it was not possible to include all the necessary information in an ad where multiple products were shown. That was exactly what the average consumer would have done had they wanted information about the products compared. That practice was industry standard and consumers were entirely familiar with it.
Overall, they believed that whether or not Tesco products were shown in the ads had no impact on the average consumer's understanding of the ads. Consumers were familiar with brands and supermarkets’ branding. The average consumer would have recognised that the non-branded products shown were not Tesco products as the well-known Tesco logo did not appear. The average consumer would therefore conclude that the products shown were from Lidl and that the Tesco products compared were ones meeting the same need as those products, which was the case. Any circumspect consumer who wished to know more would have been able to identify, and then follow, the verification link and on clicking the verification link, would have seen the full breakdown of precisely which products were compared.
The ASA noted that the claims “Save over 35% at Lidl” in ad (a) and “Save over 30% at Lidl” in ad (b) featured prominently in large text in a roundel at the top left-hand corner of the ads. We also noted that the ads contained other prominent claims regarding savings and price - large text at the bottom of the ads stated “At Lidl you can save a lot” and alongside that was a smaller roundel containing text stating “Always Lidl on price”.
The ads also featured an image of a selection of products with a Scottish theme (14 in ad (a) and 13 in ad (b)), text above that image stated a Lidl price and a Tesco price which indicated a specific comparison and which some consumers would be likely to link to the percentage savings figure. The small print stated, “… Saving based on these branded and own-brand goods at Tesco vs the cost of an equivalent product meeting the same need at Lidl …”.
However, given the prominence of the claims “Save over 35% at Lidl”/”Save over 30% at Lidl” and the accompanying claims “At Lidl you can save a lot” and “Always Lidl on price”, we did not consider that the ads made sufficiently clear that the 30%/35% savings related only to the specific selection of products shown. We considered consumers (in Scotland) would be likely to understand the savings referred to price differences offered by the two supermarkets more widely, rather than being specific only to the example basket of goods, and that the same level of savings could be achieved more generally in a typical weekly shop. Because we had not seen evidence that this general level of savings could ordinarily be achieved, we considered the ads were likely to mislead.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rules 3.33 (Comparisons with identifiable competitors) and 3.39 (Price comparisons).
2. Not upheld
We noted that, in addition to the general savings claims referred to in issue 1, the ads contained a specific comparison in relation to the example basket of goods shown and the combined price for those products at Lidl and combined price for those at Tesco.
We considered that the products shown in the ads were clearly visible and that consumers would have been likely to understand that only one set of products from one of the supermarkets in the comparison was shown, because there was only one of each product and they were grouped together. We noted that some of the products were recognisable brands, such as Highland Spring. Some of the products were loose vegetables, so did not have any packaging. The other products had branded packaging, but they were not readily recognisable, and we understood from the verification information provided that they were exclusive to Lidl brands (which were essentially, Lidl’s own-brands). We also noted that the small print “… Saving based on these branded and own-brand goods at Tesco vs the cost of an equivalent product meeting the same need at Lidl…” did not make clear from which supermarket the pictured products came.We noted that the CAP Guidance on Retailers’ Price Comparisons stated that marketers should ensure that the basis of any comparative claim was clear, whether they compared on a like-for-like basis or otherwise.
Notwithstanding that only one supermarket’s basket of goods was shown and that it was not obvious whose products were featured, we considered that consumers would have understood from the ads that the comparison included a mix of branded and own-brand products purchased at Lidl and Tesco respectively. They would have expected the comparison to be on a like-for-like basis, such that brands would have been compared with brands and own-brands compared with own-brands. We considered that where there were several own-brand options of a product at Tesco, consumers would have expected the comparison to be with the closest equivalent product meeting the same need - for example, entry-tier own-brands at Lidl with entry-tier own-brands at Tesco and deluxe own-brands at Lidl with deluxe own-brands at Tesco.
We noted from the verification data provided that brands had been compared with brands (for example, Highland Spring bottled water at Lidl had been compared to Highland Spring bottled water at Tesco), and Lidl’s exclusive brands (which were essentially own-brands) had been compared with appropriate equivalent Tesco own-brand products. For example, Lidl’s Deluxe brand Scottish smoked salmon was compared with Tesco’s Finest Scottish smoked salmon. We therefore considered that the specific comparison was on the basis that consumers would have expected.
For those reasons, whilst the ads as a whole were likely to mislead insofar as they gave the impression that a general price comparison was being made, we concluded that the specific comparison was not misleading.
On that point, we investigated the ads under CAP Code (Edition 12) rules 3.33 (Comparisons with identifiable competitors) and 3.39 (Price comparisons), but did not find them in breach.
The ads must not appear again in the form complained of. We told Lidl to ensure their advertising made sufficiently clear where savings claims, including percentage savings claims, were limited to a specific comparison.