A regional press ad for Lidl, seen in the Belfast Telegraph between 15 and 19 January 2019, had a headline which stated "HEALTHY SAVINGS!" followed by text which stated "SAVE £46* VERSUS THE SAME SHOP IN TESCO". The ad showed two supermarket trolleys filled with different products. Text above one stated "LIDL £67," while text above the other one stated "TESCO £113". The asterisk was linked to text at the bottom of the page which stated "For Full T&Cs and Product Listings, please see [Lidl website address]".
Tesco challenged whether the savings claim was misleading because:
1. the selection of products compared branded products at Tesco with own brand products at Lidl, even when in some cases Lidl sold the branded product;
2. it was not clear that branded products at Tesco were being compared with own brand products at Lidl, and
3. it relied on a price comparison made on 2 January 2019.
1. Lidl Northern Ireland GmbH (Lidl) said the ad compared products with the same purpose and which met the same need on the basis of price. They said neither the law nor the CAP Code prevented comparisons between branded and non-branded products but that, nevertheless, Tesco own-brand products were included in the comparison and that roughly 40% of the comparisons made in the ad were with Tesco own-brand products.
2. Lidl said the images used depicted all the items that had been compared. They said care was taken to ensure that the positioning of products in the trolleys mirrored each other so that it was easier for consumers to see what was being compared. While it appeared that each trolley was full, the display was arranged to ensure that all products were visible. The website address shown in the ad took readers to substantiating information which contained a comprehensive list of all items, their nature as branded or own-branded and the price.
3. Lidl said it took time to manage a marketing campaign and to gather and present adequately all the verification information. They did not believe that the time between the price check date of 2 January 2019 and the publication date for the ad (15 and 19 January) represented a delay. They said it was not their intention that the ad would be used indefinitely and that a dated comparison would only be used for a limited amount of time.
1.& 2. Upheld
The ad showed two full and similarly set out trolleys, one labelled “Lidl £67” and the other “Tesco £113”, with prominent text above which stated "SAVE £46* VERSUS THE SAME SHOP IN TESCO". We considered consumers would expect the comparison to have been made between the most comparable items (i.e. if Tesco sold a non-branded equivalent to a Lidl non-branded product, the comparison was between those two products), an expectation that we considered was reinforced by the “VERSUS THE SAME SHOP” wording.
While we understood the products had been arranged with the intention of making each one visible to consumers, it was not possible to determine the nature and/or brand of every product in each trolley or the extent to which the Tesco shop contained branded or own-brand products without visiting the website for further information. We noted the large asterisk next to the "SAVE £46" claim. The asterisk linked to text which stated "For Full T&Cs and Product Listings, please see [Lidl website address]". The ad did not contain any promotional offers and it was not therefore clear what "Full T&Cs" meant in that context, but we considered it would be clear to consumers that they could visit the website to see a full list of the products included in the comparison.
We acknowledged that advertisers could legitimately make price comparisons between branded and non-branded products as long as the basis of the comparison was clear. The ad made no direct reference to a comparison between branded and non-branded goods. In addition, in many cases Tesco sold own-brand equivalents that the price-conscious consumers to whom the ad was addressed were likely to regard as the most relevant comparator products.
We therefore considered that the basis of the comparison was unclear.
On points 1 and 2 the ad breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), 3.33 (Comparisons with identifiable competitors) and 3.39 (Price comparisons).
We acknowledged the complexity inherent in collecting and collating price information for a comparison of a large number of products. However, we were concerned that a time difference of just under two weeks when the ad appeared on 15 January, and just over two weeks when it appeared on 19 January, without any attempt to re-validate the prices in the intervening period, meant it was not possible to determine whether the savings were accurate on the dates the ads were seen. Moreover, the ad did not state when the comparison had been carried out and did not therefore alert consumers to the fact that the saving may not be accurate on the day of publication. We therefore concluded that the ad was likely to mislead.
On that point the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.33 (Comparisons with identifiable competitors) and 3.39 (Price comparisons).