A national press ad seen on 17 January 2019, featured the claims “YOUR MONEY'S WORTH MORE AT LIDL” and "Prices crunched all year round" above a photograph of four branded food products including Cathedral City cheddar cheese. Text below stated “£11.50 at Morrisons” and “£9.77 (total) at Lidl”. Small text at the bottom of the ad stated "Subject to availability. Selected stores. Lidl prices correct at time of going to print ... Morrisons prices checked at Morrisons.com on 16th January 2019. Excludes promotional pricing".
Morrisons, who believed the price comparison was not based on the prices available when the ad appeared, challenged whether the ad was misleading and could be substantiated.
Lidl UK GmbH t/a Lidl confirmed they had been aware that Morrisons had an active discount in place when the ad appeared. They stated the purpose of the ad was to demonstrate to consumers that the collective price of the selected products was lower at Lidl than at Morrisons all year round. They believed that was clear from the headline claim "YOUR MONEY'S WORTH MORE AT LIDL" together with the claim "Prices crunched all year round" and the qualifying text "Excludes promotional pricing", which was in the same sized print and on the same page as the other qualifications, and appeared directly after the statement setting out when and where Morrisons' prices were checked. Because they believed the ad was focused on the prices consumers would normally expect to pay all year round, they had selected the higher price Morrisons had charged for the cheese (£3.50) rather than the promotional price (£2.50) that applied at the time the ad appeared. They understood the higher price had been charged for longer and that it was the price consumers were more likely to be faced with at Morrisons during the course of the year.
Lidl stated they had confirmed with Morrisons that they had taken all steps to resolve any concerns and had not run the ad again. They therefore believed the matter had been resolved.
The ASA considered consumers would understand that the ad was comparing the combined price of the four items at each supermarket when the prices were checked – namely “£11.50 (total) at Morrisons” and “£9.77 (total) at Lidl”, which amounted to a difference of £1.73. We considered they would also expect that the prices did not differ significantly at the time the ad appeared. While we acknowledged that the ad stated in the small print “Excludes promotional pricing”, we considered, in the absence of further, more prominent, clarifying information, that consumers would be likely to understand that none of the featured items were currently subject to a promotional price, at either Lidl or Morrisons. We therefore considered that consumers would understand that purchasing the four products at Lidl would save them £1.73 compared to the same purchases at Morrisons.
We noted that the ad appeared on 17 January 2019 and the comparison was said to be based on the prices in place at Lidl and Morrisons on 16 January 2019. However, on both 16 and 17 January, Cathedral City cheddar cheese was on promotion at Morrisons, priced at £2.50, which meant the total cost of the products on those days was £10.50, not £11.50 as stated in the ad. The total saving for consumers purchasing the four featured products at Lidl instead of Morrisons was therefore 73p, not £1.73.
Because, we considered that consumers would understand from the ad that the price difference on 16 and 17 January 2019 between the four products at Lidl and at Morrisons was £1.73, when it was in fact 73p, we concluded that the ad was likely to mislead.
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), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualifications), 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 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. and 3.39 3.39 Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises. (Comparisons).
The ad must not appear again in the form complained of. We told Lidl UK GmbH t/a Lidl to ensure the basis of their price comparisons were clear and their ads reflected the prices available to consumers.