The website misspap.com, for the online fashion retailer Miss Pap, seen on 8 January 2020, showed photographs of various products. A banner at the top of the page stated, “£1.99 NEXT DAY DELIVERY*” in bold black font on a pink background. Smaller text below that stated, “HURRY ENDS IN 00H 02M 13S”. The countdown clock reset when it reached zero alongside the offer “£1 NEXT DAY DELIVERY!”.
IssueThe ASA challenged whether the ad misleadingly implied the price would revert to the higher price once the countdown was over, when it actually continued at a better price after the countdown clock reached zero.
MissPap Ltd t/a Miss Pap stated that their business model ran separate and unique promotions on a daily basis. On some days those promotions changed more than once throughout the day. Miss Pap explained that their terms and conditions provided that next day delivery within the United Kingdom was £5.99. They added that “£1.99 Next Day Delivery” and “£1 Next Day Delivery” promotions were both better offers than the standard next day delivery price of £5.99.
Miss Pap stated that there was no evidence which suggested the average consumer would have been influenced to make a different choice. They did not believe that the average customer would have been influenced to make a different transactional decision by a variant price offering of 99p. They stated that both offers varied in price, and were genuinely time limited. Miss Pap argued that it was not industry practice to disclose details of the promotional calendar to the customer, in particular highlighting the monetary value of the next promotion. They added that retailers would not offer a promotion with an explanation that once that promotion ends a ‘better offer’ promotion would begin.
The ad featured a ticking countdown clock that appeared to be counting down to zero. The ASA considered that consumers would understand the claim “£1.99 NEXT DAY DELIVERY” to mean that if they purchased any product within the time period, the product would be delivered the following day for £1.99, whereas if they purchased the product after the clock reached zero, they would have to pay for next day delivery at Miss Pap’s usual price of £5.99. We considered the word “HURRY” reinforced the impression that it was time-limited.
We understood, however, that once the countdown clock reached zero, it reset with a new next day delivery offer which regularly shifted between £1 and £1.99, with a new countdown clock counting down to zero. We understood that this re-occurred throughout the day. We considered that consumers were likely to regard the offer as a time limited promotion and expect it to expire at the end of the countdown.
The countdown clock was therefore likely to pressurise consumers into making swift transactional decisions, including purchasing the product, without giving their purchase the due consideration they normally would because of the misleading implication in the ad that the offer would run out at the end of the time period. Because consumers would expect the offer of £1.99 next day delivery to end and then revert to the usual price after the countdown ended, when in actual fact the clock was reset with a better offer, meaning that the promotions were not actually time limited, we concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. 8.17 8.17 All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include: 8.17 8.17 All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include: 1 and 8.17 8.17 All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include: 4.E (Promotional marketing).
The ad must not appear again in its current form. We told MissPap Ltd t/a Miss Pap to ensure that their future advertising did not misleadingly imply that discount offers were time-limited, for example by using a countdown clock, if that was not the case.