A circular for Lidl, seen on 17 April 2018, was headed "SPECIAL OFFERS". Alongside the heading, text stated, "Monday 16th - Sunday 22nd April 2018".
On page 7 of the circular, a large roundel stated, "Super Savers!", and another stated, "14 NEW OFFERS FOR LESS EVERY WEEK". Various products were listed with discounted prices, including several fruits and vegetables listed at 49p. In the top right corner, text stated, "THURS - WED 19 - 25 April".
The complainant, who visited a store and found that the listed fruit and vegetables cost more than 49p, challenged whether the ad misleadingly implied they would be offered for the reduced price between 16 April and 22 April.
Lidl Northern Ireland GmbH said their “Special Offers” leaflets were produced weekly to inform their customers about products that were on offer. The leaflets included a two-page section on their “Super Savers”, which were selected product discounts that represented the most savings for their customers. In the case of the ad in question, the leaflet covered a period from Monday 16 April to Sunday 22 April 2018, with the dates in the Super Saver section being Thursday 19 April to Wednesday 25 April 2018.
Lidl said the dates on the cover were located on a black heading accompanying a title "Special Offers", next to which appeared Lidl's logo. They said that was the only instance in the leaflet where a title was displayed so prominently at the top of the page. They said that was clearly indicative of the fact that it was the overall title of the leaflet. They said the accompanying dates indicated the relevant period to which it applied, and they believed that was unambiguous.
Lidl said pages 6 and 7 represented a single two-page spread, and as was evident by the inclusion of graphic badges that extended between both pages, were intended to be viewed as one. On the upper right-hand corner of the spread were the applicable dates for the Super Saver offers – i.e. in a similar location to where the applicable dates appeared on the cover page. They said the dates were featured prominently in their own graphic box with a red background to make them even more apparent to consumers. They said the text used was white and in bold type and was designed intentionally to be eye-catching, and that utmost care had been taken to ensure consumers were not misled as to the applicable dates. They did not believe that a mere repositioning of the text on the page would add any further clarity. In addition, they said Super Saver products were clearly marked in their stores, most importantly on price tickets.
Lidl believed that, when viewed as a whole, given the uniform way in which the pages of the leaflet indicated the relevant validity dates, it would be unambiguous to readers on which dates the offers applied.
The ASA considered that consumers who saw the front page of the ad were likely to understand that the “SPECIAL OFFERS” contained within the leaflet could be obtained on the dates stated at the top of the page, i.e. Monday 16 April to Sunday 22 April. We noted that the front page also contained a reference to the “Super Savers” offer, which was the promotion under which the items on pages 6 and 7 were offered. We considered that was likely to reinforce the impression that such offers would be available on the dates set out at the top of the page. We considered that consumers would not expect that offers within the leaflet would fall outside of the dates stated on the cover.
We noted that pages 6 and 7 included a number of roundels, the biggest of which were another “Super Savers” one and one that stated “14 NEW OFFERS FOR LESS EVERY WEEK”. They were likely to be the symbols that were most likely to draw the attention of readers. The top corner of the page stated “THURS - WED 19 - 25 April” in a format that was very similar to that used for the prices of the products on those pages, and we considered it was likely to be missed by consumers. We noted that the other pages of the leaflet did include similar boxes in the same position on each the page indicating the validity dates, and that the boxes on the previous pages were in blue against a white background, which were clearer than that on page 7, but we did not consider that sufficient to override the impression created by the front page.
Given the above, we considered that consumers were likely to assume that the offers within pages 6 and 7 of the leaflet could be obtained during the dates set out on the front page, and because that was not the case, we concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
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 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification).
The ad must not appear again in its current form. We told Lidl Northern Ireland GmbH to ensure they did not mislead about the dates on which promotions applied.