Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one Not upheld.
Ad description
An e-mail and website offered a sales promotion on laser eye surgery.
a. An e-mail stated "Exclusive 1/2 Price Laser Eye Surgery Available in May Our most advanced treatment, CustomVue Wavefront LASIK with IntraLase at up to 1/2 price ... ". A click-through link labelled "Click here to find out more" was provided. That link led to ad (b).
b. Claims on www.opticalexpress.co.uk/laser-eye-surgery were headlined "1/2 Price Offer Our most advanced treatment* at up to ½ price". Text stated "As the UK's No.1 provider of laser eye surgery, we are committed to ensuring that laser eye surgery is affordable for every patient. Book your FREE consultation by the 2nd of June to take advantage of this limited offer which is up to 1/2 of the maximum competitor price of £4,590 - saving you 50% of Ultralase's and 39% of Optimax's price for equivalent treatment". The website included a table that compared prices between the advertisers, Optimax and Ultralase. Small text stated "* *Advanced CustomVue Wavefront LASIK with IntraLase".
Issue
The complainant challenged whether the sales promotion in
1. ad (a); and
2. ad (b)
was misleading, because it implied an up to half price saving on the price customers would usually expect to pay.
Response
1. & 2. Optical Express responded via Harper Macleod LLP.
They said the claims in ad (a) should be read in conjunction with ad (b), namely the web page accessed via the click-through link labelled "Click here to find out more". They said ad (a) stated "up to half price" and the offer could not be taken up from the e-mail, and the web page had to be accessed.
They said there were three national suppliers of laser eye surgery, the advertisers, Optimax and Ultralase. The offer concerned Intralase Wavefront LASIK. The Optimax equivalent of the advertised treatment was priced at £3770 for both eyes, which represented a saving of 39% on the Optimax price, and the Ultralase equivalent, Ultra Elite with LASIK, was priced at £4590 for both eyes, which represented a saving of 50%.
They said the half price offer was explicitly stated to be a comparison with the maximum competitor prices for equivalent treatments and that was set out in the table which included the Optical Express, Optimax and Ultralase prices. They did not consider that the offer could be confused with an offer which sought to make a savings comparison with any of their own prices. They stated that, other than for the offer in question which was a fixed price, their prices depended on the extent of the prescription treated. They accepted that competitors might have lower prices for other laser eye surgery procedures, but said it was explicitly stated that the comparison in this case was with competitors' maximum prices.
Assessment
1. Upheld
The ASA considered that, in the absence of clear, qualifying text, the claims "Exclusive 1/2 Price Laser Eye Surgery" and "at up to 1/2 price" implied the advertisers were promoting their own laser eye surgery at half their usual price. However, we noted that the offer was instead a comparative claim, where consumers could save up to half price against their competitors' prices. Although we acknowledged that further information about the basis of the comparison could be found in the linked ad (b), and that consumers had to click on to that web page to obtain the offer, we considered that the basis of the comparison was a significant term which should have been made clear in the main body of ad (a). We therefore concluded that the ad was likely to mislead.
On that point, 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),
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),
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),
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.
3.35
3.35
They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.
(Comparisons with Identifiable Competitors),
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.
(Price comparisons) and
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
(Significant conditions for promotions).
2. Not upheld
We noted that the headline itself "1/2 Price Offer" did not detail the basis of the comparison, but acknowledged that text below the headline explained that the offer represented "up to 1/2 of the maximum competitor price of £4,590 - saving you 50% of Ultralase's and 39% of Optimax's price for equivalent treatment". We noted that the comparison table below that text also set out the advertisers' price against Optimax and Ultralase and detailed the relevant savings. We therefore considered that that information clarified the basis of the comparison for consumers.
We noted that the comparison table also stated that the comparison was for "Intralase Wavefront LASIK" and considered that consumers would therefore understand that the advertisers were comparing the price of that particular treatment with the equivalent treatment from competitors. We also noted that ad (b) stated that the offer related to "our most advanced treatment", which further clarified the particular treatment available with the offer.
Because we considered that the basis of the comparison was clear, we concluded that the ad was unlikely to mislead.
On that point, we investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(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),
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),
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.
3.35
3.35
They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.
(Comparisons with Identifiable Competitors),
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.
(Price comparisons) and
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
(Significant conditions for promotions), but did not find it in breach.
Action
Ad (a) must not appear again in its current form. We told Optical Express to ensure that the basis of any price comparison was clear.
CAP Code (Edition 12)
3.1 3.17 3.33 3.35 3.39 3.7 8.17.1
