An e-mail from MoneySavingExpert.com, promoted an offer of 12 red roses delivered by courier on Valentine's Day for £12. Text stated "Valentine's deals to make your heart flutter: 12 red roses, £12 couriered. MSE Blagged. 500 avail ...".
The complainant challenged whether the promotion had been administered fairly, because she understood that on the day of delivery, Moneysavingexpert.com informed consumers that the suppliers would not be able to deliver all the orders.
Moneysavingexpert.com Ltd (MSE) stated that the delivery issues which beset Arena Online Ltd t/a Arena Flowers (Arena) were not foreseeable by themselves or, to the best of their knowledge, by Arena, and had not just affected MSE users, which represented a tiny percentage of Arena's total Valentine's Day customers. They stated that the delivery issue did not affect the "fairness" of the deal that MSE had publicised. Instead, they believed that Arena had dealt very fairly with the affected customers and understood that they had offered to send them a bouquet of 24 roses the next day at no extra cost, as well as ensuring refunds were given to all customers who requested them. They highlighted that some customers received both a full refund and a bouquet of 24 roses. Therefore, although MSE asserted that they had very limited influence over, or visibility of, how orders were fulfilled by Arena, they did not consider that the promotion had been unfairly administered.
MSE also asserted that they were not the promoter of the offer and therefore not accountable for its administration. They highlighted that the offer had been fulfilled by Arena, entirely in their own name and not as an agent or representative or MSE. They also stated that they had carried out reasonable checks on Arena to verify that they were an established and credible retailer, capable of delivering 500 bouquets on Valentine's Day. They explained that "MSE Blagged" offers were generally exclusive to MSE as they negotiated them for their readers, but that they didn't always receive payment for the offer. In this case, MSE stated that the initial arrangement was that MSE would receive a small payment for each sale that Arena made to an MSE user in connection with the Valentine's promotion. They explained, however, that because of the supply issues, they had asked Arena not to pay them, and instead invest the money back into addressing the resulting customer service issues. Although MSE acknowledged that they had haggled a discounted price for their readers, they did not believe that this meant they were the promoter.
More generally, they believed that just because they received payment for some of their offers, that did not mean that they should be considered the promoter of those offers, as they were merely bringing them to their readers' attention and were not themselves involved in the fulfilment of the goods or services. They asserted that they never chose to feature a deal because a payment arrangement was in place, but the decision was made independently of any commercial considerations. MSE acknowledged that they had posted an update on their website at 11.15 am on 14 February, once Arena informed them at 8.39 am that some bouquets would not be delivered on time, and that they had been involved in drafting an e-mail sent from Arena to those MSE users affected by the delivery problems. They stated that that was not unusual behaviour, however, and that they often worked to try and help consumers when things went wrong, across many sectors, regardless of whether the a deal was "blagged" or not. They explained that they had not sent a direct communication to the MSE users affected because they did not hold any customers' details for any deals featured on MSE as the contracts for purchase were between the individual and the retailer.
Arena stated that over Valentine's week they were unable to deliver a small minority of their Valentine's bouquets, which included customers who had taken advantage of the MSE offer, due to issues with their operational logistics which they could not forsee. They said it had been suggested that they had run out of flowers, which was not the case. Instead, they explained the issue had been getting the flowers, cards and gifts into boxes and loaded on to their trucks at the required rate. They said, as in previous years, they only started to pack the bouquets 24 hours before the last courier collection and it was difficult to manage such a complex operation in such a short space of time, but that they had planned the operation carefully and so they had no reason to believe that any problems would arise. They highlighted a string of issues that had occurred on the 13 February, however, including a power cut at their warehouse, the fact some of their cards were delivered to the wrong address and that their courier sent the last truck to the incorrect warehouse, which meant that a small proportion of their orders were not shipped. They again asserted that those factors were beyond their control and claimed that if the last truck had arrived at the correct warehouse, all the orders would have been dispatched on time. They provided data that showed how they had forecasted demand for Valentine's orders in 2013, and how that data had informed other decisions, such as the amount of warehouse space and the number of staff required.
Arena explained that they were only aware very late on 13 February that some orders would not be shipped, and that it then took them some time to work out which orders had been shipped successfully. They said affected customers were sent an e-mail at noon on 14 February, which was much later than they would have liked, alerting them to the fact that their order would not arrive that day. They also confirmed that MSE had some influence regarding the content of the e-mail sent to their users. That e-mail informed those affected that their flowers would be delivered on 15 February instead and that they would receive 24 rather than 12 roses. The e-mail also informed customers that if they preferred they could cancel their order and receive a full refund. Affected individuals were also later given a 50% off promotional code for a future order. Arena also said they were very proactive on Twitter and Facebook, communicating regular updates to their customers and managing contacts. They sent us copies of blog entries that they had uploaded on 14 and 28 February, which alerted consumers to the problems they had experienced and apologised for the delay.
Arena explained that a number of consumers actually received 24 roses, a full refund and a 50% off discount code, and so although they acknowledged the incident was highly regrettable, they believed those affected received a very generous settlement.
We noted that the offer had been "blagged" by MSE for MSE users, and was therefore unique and not available from any other source. We also noted that in the initial arrangement between MSE and Arena, MSE were to receive payment for every sale Arena made to a MSE user. Therefore, although we acknowledged that MSE were not involved in the fulfilment of the offer, as they were involved in the creation of the deal, made it available to their users and would have benefitted financially, and in terms of their branding, if all had gone to plan, we considered they were jointly responsible for the promotion.
We understood that MSE had made what they believed to be reasonable checks regarding Arena's capacity to deliver the 500 MSE user bouquets. We noted, however, that a number of MSE customers, along with other consumers who had ordered roses directly with Arena, had not received their order on 14 February because, although Arena had sufficient stock, they had not been able to package and dispatch all the orders they had received within the limited timeframe. We understood that Arena attributed their failure to prepare and dispatch all their orders because of a number of unforeseen issues, including the fact that their final truck failed to turn up at the correct warehouse. We reviewed the forecasting data provided and considered that Arena had made a reasonable estimate of demand and the resources required to meet that demand.
We understood that Arena became aware that not all their customers would receive their orders late on 13 February. We noted that in the effort to dispatch as many orders as possible, it took some time for Arena to establish which orders had been successfully dispatched and therefore they were not able to send out an e-mail alerting consumers to the fact that they would not receive their order until noon on 14 February. In addition, although we understood that that e-mail informed consumers that they would receive a larger bouquet on 15 February instead, we noted from the complainant, and from the blog posts that Arena had supplied, that due to a problem with their courier, they also failed to deliver between 15% and 20% of the late deliveries on 15 February, although those customers were offered another redelivery or a refund.
We noted that MSE had chosen to post information alerting their users to the fact some deliveries would not arrive on time on the morning of 14 February, but considered it was unlikely that consumers who had taken advantage of the offer would visit the site and see the update. We therefore considered it was conceivable that a MSE user who had taken advantage of the offer could have not read the e-mail from Arena until the afternoon or evening of 14 February when it was too late to locate a replacement bouquet, and then, if they had decided to wait until the 15 February, they might not have received their bouquet on that date either. We therefore considered that the promotion had not been administered fairly and was in breach of the Code.
The promotion breached CAP Code (Edition 12) rules
Promoters are responsible for all aspects and all stages of their promotions.
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.
(Sales promotions), and
Promoters must not encourage the consumer to make a purchase or series of purchases as a precondition to applying for promotional items if the number of those items is limited, unless the limitation is made sufficiently clear at each stage for the consumer accurately to assess whether participation is worthwhile.
(Availability) but did not breach 8.9 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. (Availability).
We told MSE and Arena to ensure future promotions were fairly administered and did not cause unnecessary disappointment.