Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A TV ad for My Perfect Eyes and a product listing on their website:
a. The TV ad, seen on ITV 2 & 3 between 6 June and 15 July 2022, including on 7 July 2022, opened with a voice-over that stated, “If you’ve noticed signs of aging, and you’re suffering from those wrinkles, bags, and dark circles, the answer is My Perfect Eyes. And right now, for a limited time only, My Perfect Eyes is 50% off”. Large on-screen text that stated, “My Perfect Eyes SAVE 50%” was shown alongside a shot of the product’s packaging and bottle. Smaller text that stated, “Call 0800 702 2948 or go to my perfect.uk” was included on a blue banner at the bottom of the screen throughout the ad. The ad’s final shot included large text that stated, “SAVE 50%”, WAS £29.99 NOW £14.99 +£3.99 P&P” and smaller text that stated, “Offer Ends 21/06” as the voice-over continued, “So for a limited time only, My Perfect Eyes is 50% off […] Call the number on your screen or visit myperfect.uk and take advantage of this very special 50% off time-limited offer.”
b. The product listing on the My Perfect Eyes website, www.myperfectcosmeticsuk.co.uk, seen between 10 June and 7 July 2022, for the product advertised in ad (a), featured text that stated, “£14.99 £29.99 [crossed out]” and “Buy it now”, accompanied by a slideshow reel of five images that included an image of the product’s packaging and bottle.
A link in that page’s footer directed visitors to a page on the website headed “Shipping Policy” which featured text under the heading, “How long does delivery take?” that stated, “We endeavour to pick, pack, and dispatch your order within 24-48 hours. For orders placed within the United Kingdom, please allow a further 2-4 business days to receive your order. Please note for remote destinations your delivery may take a little bit longer”. Under the heading “COVID-19 Update”, text stated “All of our orders are currently being dispatched as normal. Due to COVID-19 there may be delays within delivery services as transport capabilities may be reduced. Please follow your tracking number for the latest shipment details and arrival date”. Under the further heading, “Delivery, Risk & Ownership”, the page included text that stated, “In the unlikely event that we fail to deliver the products within 30 calendar days of our dispatch conformation […] if any of the following apply you may cancel your order immediately: We have refused to deliver your products; or; in light if all relevant circumstances, delivery within that time period was essential”.
Issue
The ASA received ten complaints:
1. Six complainants, who had placed orders and not received them, challenged whether ad (a) was misleading.
2. Three complainants, who had placed orders and only one of whom had received theirs after five weeks, challenged whether ad (b) was misleading.
3. One complainant, who saw ad (a) after the closing date it quoted, challenged whether the ad’s scheduling meant that it was misleading.
Response
1. & 2. In relation to ads (a) and (b), My Perfect Cosmetics Company Ltd t/a My Perfect Eyes said that an unexpected influx of orders and issues with their supply chain had caused significant delays to orders placed during the period in which the ads were seen. That unexpected influx had been caused by TV ads that featured a similar product of the same name, which was manufactured by an Australian company that had formerly been under the same ownership as My Perfect Eyes. The similarity between the two products, as well as the similar names that each company traded under, had meant that the other TV ads had inadvertently driven sales through their website ad (b). Because the cause of that traffic was an ad that featured another company’s product, they believed that delays caused by that unexpected influx of orders were unforeseeable and outside of their control. They also added that they always offered a full refund, or an extra product free of charge, to any customer dissatisfied with delivery delays.
They said that having been notified by Clearcast about ASA complaints relating to unfulfilled orders, they had acknowledged that the issues with their stock had caused significant delays to orders placed in the period in which the ad was seen. However, at that stage, they assured Clearcast that all outstanding orders would be fulfilled within the following 10 days, and emphasised they held sufficient stock to cover the demand anticipated for the next 12 weeks. My Perfect Eyes highlighted they had observed that assurance, and added that, having taken steps to address the causes underlying previous delays, they had been fulfilling orders as normal ever since. They added that they had recently switched to a UK supplier, which, given they no longer relied on the arrival of overseas shipments, meant similar delays were less likely to occur in future.In relation to the advertised product, they provided a record of every order received between 1 June and 31 July 2022. It included the date on which each order was placed and the date it was dispatched to customers via a tracked 48-hour courier service. They also provided a copy of an invoice that gave information about the number of units of the advertised product My Perfect Eyes had purchased from their supplier in September 2022. In relation to that invoice, they explained that, given the average number of orders they received each week, that invoice demonstrated they had sufficient stock for the next 21 weeks.
Clearcast supported My Perfect Eyes’ response in relation to the TV ad (a) and highlighted that, as a safeguard against the risk of future delays, the advertiser had decided to pause all TV advertising for the next three months. They understood that, in the intervening period, the advertiser would ensure their operations were suitably scaled to handle the increased demand that TV ads could produce.
Clearcast also emphasised that My Perfect Eyes was no longer under the same ownership as the similarly named Australian company that sold a similar product with the same name. They said that some customers with delayed orders had accidentally complained or enquired to the wrong company. That confusion had hindered My Perfect Eyes’ ability to communicate with their customers.
3. My Perfect Eyes stated that they had decided to extend the advertised promotional offer beyond its original closing date, 21 June 2022, which was quoted on-screen in the ad. They also stated that they had not initially intended for the ad to continue airing with an out-of-date closing date. In advance of the original closing date, they had aimed to prepare and provide ITV with an amended version of the ad that featured a revised on-screen closing date. However, delays due to staff leave had meant the amended ad was not provided to ITV until 13 July 2022.
Clearcast stated that they initially approved the ad on 27 May 2022, and that Copy Instructions, which set out the terms of its approval, had stated, “Time limited offer. Ad should not be broadcast after 21/6/22”. They explained that text signalled to broadcasters that the ad was only officially cleared to air until that closing date. However, they explained that they did not formally revoke their approval of ads that featured time-limited promotions after the promotion’s closing date had passed. In that scenario, while the continued appearance of such ads remained technically acceptable, they were scheduled for broadcast without Clearcast’s knowledge or consent. In line with that, they stated that they had not been aware of, or involved in, the ad’s continued appearance. They added that they had cleared a new TV ad for the same product on 22 July 2022. Because that ad did not compare the price quoted with a previous price, Clearcast considered that the ad featured an open-ended offer, meaning its clearance was not subject to the same limitation.
ITV said that when the ad continued airing after 21 June 2022, it did so according to instructions the advertiser’s agency had provided and ITV were initially unaware that the ad featured an out-of-date closing date. The volume of ads they broadcast daily meant that it was not feasible to manually review all Clearcast Copy Instructions for consistency with the scheduling of each ad, and they expected advertisers and agencies not to instruct them to schedule ads in a way which contradicted those scheduling restrictions. However, as soon as they were made aware of that the issue in this case, they contacted the advertiser’s agency who, having explained the advertiser was in the process of putting together a new version with an amended closing date, requested that the ad continued airing without alteration until that new version was ready. ITV understood that fulfilling the agency’s request would mean the ad’s scheduling was likely to breach the BCAP Code. On that basis, they swiftly took steps to ensure the ad would not reappear until the issue had been resolved.
Assessment
1. Upheld
The BCAP Code stated that ads must not mislead and required ads which quoted a price for a featured product to state any reasonable grounds the marketer had for believing it might not be able to supply the advertised (or an equivalent) product at the advertised price within a reasonable period.
The ad quoted a promotional price for the advertised product with text that stated “SAVE 50%”, WAS £29.99 NOW £14.99”. The ASA considered that consumers would understand from the ad that the product could be purchased at the promotional price at the time of broadcast and until the closing date given on-screen. While we acknowledged the ad itself didn’t feature claims about the timeframe for delivery, in the absence of any information in the ad to the contrary we considered that consumers would expect to receive their order within a reasonable timeframe. The on-screen text “+£3.99 P&P” reinforced that expectation of timely delivery because, given the product’s size, consumers were likely to associate that relatively high delivery charge with first-class post or a courier service. The ad directed viewers to order via phone or the advertiser’s website ad (b). That meant that viewers who used the website to order were also likely to expect their order to be delivered within the period set out in the advertiser’s shipping policy, for those consumers who accessed it.
My Perfect Cosmetics Company had provided evidence regarding the time taken to fulfil orders of the advertised product. It included the date on which each order was placed and the date it was dispatched to customers via a tracked 48-hour courier service. Notwithstanding that the evidence did not contain information about the actual date of delivery, it showed that a large proportion of orders placed between 6 June to 17 July 2022 were dispatched more than four weeks after they were placed. In some instances, even longer delays had occurred. For those reasons, we considered that the evidence suggested the delays experienced by the complainants were common.
We acknowledged My Perfect Cosmetic Company Ltd’s response that another advertiser’s TV ads had led to an unforeseen increase in online sales of the advertised product, which meant their stock had been depleted sooner than expected. We further acknowledged that such an occurrence might, in general, be difficult to anticipate. However, we considered that, once the advertiser had become aware of a potential depletion in stock, they should have taken prompt action to ensure their ads did not misleadingly imply the advertised product was available as usual. Despite that, throughout the relevant period, 10 June – 7 July 2022, ad (a) continued to air and was not withdrawn or amended. We also noted that the advertiser chose to extend the promotional offer during this period, which was likely only to have increased demand further.
Because consumers would understand from ad (a) that the product was available and would be delivered within a reasonable timeframe when that was not the case during this period, we concluded that the ad was misleading.
On that point, ad (a) breached BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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 3.29 3.29 Advertisements that quote prices for featured products must state any reasonable grounds the advertisers have for believing that they might not be able to supply the advertised (or an equivalent) product at the advertised price, within a reasonable period and in reasonable quantities. In particular: (Availability).
2. Upheld
The CAP Code required ads that quoted a price for a featured product to state any reasonable grounds the marketer had for believing it might not be able to supply the advertised (or an equivalent) product at the advertised price within a reasonable period. Marketers were also required to monitor stocks and if a product became unavailable, marketers were required, whenever possible, to withdraw or amend ads featuring that product.
The website ad (b) featured text that stated, “£14.99 £29.99 [crossed out]” and “Buy it now” during the relevant period of 10 June and 7 July 2022. Consumers would therefore have understood from the ad that the product could be purchased at the promotional price at that time. The web page itself did not feature claims about the timeframe for delivery. However, in the absence of any prominent qualification to the contrary we considered that consumers would expect to receive their order within a reasonable timeframe.In addition, the website’s Shipping Policy, linked to in the page’s footer, featured the claim, “We endeavour to […] dispatch your order within 24-48 hours [...] please allow a further 2-4 business days to receive your order”. We considered that claim gave the impression that the advertised product would be delivered within 6 working days, barring unforeseen circumstances outside of My Perfect Cosmetic Company’s control, and that consumers would expect that estimated timeframes to take account of any ongoing disruption or issues with stock that the advertiser was aware of. Further qualifying text stated, “All of our orders are currently being dispatched as normal. Due to COVID-19 there may be delays within delivery services as transport capabilities may be reduced”. We understood from My Perfect Cosmetics that delivery services were not the causes of delays at the time the ad was seen, and we did not consider that the qualification was sufficient to counter the overall impression of the ad, or the information given on the delivery page regarding usual timeframes.
As noted in point one, My Perfect Cosmetics Company had provided evidence regarding the time taken to fulfil orders of the advertised product. It included the date on which each order was placed and the date it was dispatched to customers via a tracked 48-hour courier service. Notwithstanding that the evidence did not contain direct information about the actual date of delivery, it showed that a large proportion of orders placed between 6 June and 17 July 2022 were dispatched more than four weeks after they were placed. In some instances, even longer delays had occurred. For those reasons, we considered that the evidence suggested the delays experienced by the complainants were common.
We acknowledged their response that another advertiser’s TV ads had led to an unforeseen increase in online sales of the advertised product, which meant their stock had been depleted sooner than expected. We further acknowledged that such an occurrence might, in general, be difficult to anticipate. However, we considered that once the advertiser had become aware of a potential depletion in stock, they should have taken prompt action to ensure their ads, including their website, did not misleadingly imply the advertised product was available as usual. Despite that, we had not seen any evidence that amendments had been made to the website during the relevant period to manage consumer expectations and ensure they were not misled. We also noted that the advertiser chose to extend the promotional offer during this period, which was likely only to have increased demand further.
Because consumers would understand from ad (b) that the product was available and would be delivered within a reasonable timeframe when that was not the case during this period, we concluded that the ad was misleading.
On that point, ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Advertisements must not falsely imply that the advertiser is acting as a consumer or for purposes outside its trade, business, craft or profession. Advertisements must make clear their commercial intent, if that is not obvious from the context. (Substantiation), 3.28 3.28 Broadcasters must be satisfied that advertisers have made a reasonable estimate of demand. and 3.29 3.29 Advertisements that quote prices for featured products must state any reasonable grounds the advertisers have for believing that they might not be able to supply the advertised (or an equivalent) product at the advertised price, within a reasonable period and in reasonable quantities. In particular: (Availability).
3. Upheld
The TV ad (a) ad featured on-screen text which stated, “Offer ends 21/06”. The voice-over repeated the phrase “For a limited time only” and stated “take advantage of this very special 50% off time-limited offer”. The ad therefore placed strong emphasis on the time-limited nature of the offer.
We considered that the fact the ad was being broadcast would be understood by consumers to mean that the advertised product was available at the promotional price quoted, and that was the overall impression given by the ad despite the inclusion of the closing date in on-screen text. However, the ad had continued to be broadcast after the original closing date for the promotion of 21 June 2022 and was therefore misleading after that date.
We noted that the advertiser had not prevented the ad being broadcast after the original closing date and therefore misleading consumers by promptly providing ITV with a version that featured a revised closing date. Notwithstanding that, we were concerned that the advertiser had extended the closing date for the promotion, because it meant that the impression given by the ad that the offer was strictly time limited and that they needed to purchase by 21 June 2022 to take advantage of it was misleading.
For those reasons, we concluded that ad (a) was misleading.
On that point, ad (a) breached BCAP Code rule 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising).
Action
The ads must not appear again in the form complained of. We told My Perfect Cosmetics Company Ltd t/a My Perfect Eyes to ensure that their future ads did not mislead, for example, by including misleading delivery claims and that, if one of their products became unavailable in future, to withdraw or amend all ads featuring that product, insofar as was possible. We also told them that their future ads that quoted a price for a product were required to state any reasonable grounds they had for believing they might not be able to supply the advertised product within a reasonable timeframe. Their future broadcast ads that included a time-limited promotional offer must not be scheduled to appear after the promotion’s closing date has passed.
BCAP Code
3.1 3.9 3.29 3.1 3.7 3.28 3.29
