Ad description
A clothing website, www.missguided.co.uk, offered "FREE UK NEXT DAY DELIVERY On all orders over £60". Next day delivery was charged at "£4.99*" "*postcode restrictions apply".
Issue
One complainant, who had placed a next-day order in early December 2014, challenged whether the claim "Next day delivery" was misleading, because she had not received her order the next day and understood that many other customers had also not received their orders the next day.
Response
Missguided Ltd's response was provided by Brabners, their representative. They acknowledged that a small minority of orders for customers who requested next-day delivery had not received their orders on the next day. However, the majority of next-day delivery requests were fulfilled.
They indicated that there had been two recent issues which had affected delivery times. Firstly, a week-long internal warehouse failure from 28th November to 6th December 2014, which had affected approximately 5% of orders. The vast majority of orders, however, were unaffected by this failure. They stated that Missguided had notified all affected customers by email on the same day of the failure and had informed customers that their parcels would be late. They stated customers were given a refund of delivery costs. In addition, an email was sent to those affected customers offering a discount off their next order.
Secondly, following the particularly busy shopping days, Black Friday (28 November) and Cyber Monday (1 December), there was an unprecedented and unexpectedly high level of sales for all retailers generally in the UK, particularly on the internet, and a number of courier services had faced difficulties fulfilling collections and deliveries generally. They stated that one particular courier service, which provided 92.27% of delivery services for Missguided, had been affected. They stated that a minority of the courier's deliveries had suffered a delay prior to Christmas and they understood affected customers had been informed of any delay by email on the day their delivery was due, and updates were provided. They stated that by 24 December any backlog that the courier had suffered had been cleared. They considered that the matter had been outside Missguided's control.
They provided the delivery stats for Missguided's products from that courier during November and December 2014.
Missguided were not aware of any ongoing problems and, as of 21 December 2014, they understood that the delivery success rate was back to normal levels of over 98%. They considered that this represented a very high success rate. They acknowledged, therefore, that there would be a very small number of customers who were affected by late delivery (both due to courier failure and warehouse failure, such as missing or out of stock items).
Assessment
Not upheld
The ASA acknowledged that the delivery information section of the website set out the "cut off time" for next-day deliveries at 8 pm on Monday to Thursday and considered that consumers would understand that orders placed before that time would be delivered the next working day except in exceptional or unforeseeable circumstances. We noted that the claim did not contain any reference to a "guarantee" for next-day delivery.
We acknowledged that there could be reasons outside of the advertiser’s control which could generally be seen by consumers as an acceptable reason for late delivery. However, we considered that busy periods such as Black Friday or Christmas should be factored into an advertiser's assessment of whether they were able to offer next-day delivery before such a claim was made. In addition, although we understood that Missguided had experienced problems with a courier, we considered they were nonetheless responsible for ensuring that their customers received their orders on time and when they were expected.
We understood that the complainant's order was likely to have been affected by an internal warehouse failure and the impact of Black Friday and Cyber Monday, which were particularly busy shopping days, on their main courier's capabilities. We noted that the complainant had been offered a 10% discount on her next order and had been updated by email on the progress of her delivery, although the complainant nonetheless maintained that her delivery had still not been received when the email update indicated that it would be, namely a day later than the next day.
We considered, in order for the "UK NEXT DAY DELIVERY" claim to be substantiated, that Missguided needed to demonstrate that the complainant's experience was an exceptional occurrence and that they did consistently deliver items the next working day after an order was placed.
We noted, from the figures provided by the courier, that during the period of November and December 2014, the vast majority of deliveries were successfully delivered the next day (98−99%), although a small minority were not. We noted that even though the number of successful next-day deliveries fell further during the Black Friday and Cyber Monday period and the subsequent fortnight (30 November to 14 December), the information provided indicated that the courier was nonetheless still able to successfully meet the vast majority of next day deliveries during that time (90−92%).
In spite of the problems experienced during the Black Friday period, which we accepted had affected the complainant and some other customers, and although 100% of cases would have been ideal in supporting the "UK NEXT DAY DELIVERY" claim, we considered that, on balance, Missguided had provided sufficient evidence to show that they were generally able to deliver the next day in the vast majority of cases and concluded that the claim was not misleading.
We investigated the claim under 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),
3.7
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) 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), but did not find it in breach.
Action
No further action necessary.
