Ad description

Online sales promotions, for laser eye surgery, on the Optimax Laser Eye Clinics website in February 2011. The promotions included comparisons with Optical Express and Ultralase and included text such as “£XXXX Off Treatment ... Our offer - both eyes IntraLase Wavefront LASIK £XXXX Up to £XXXX off our competitors price - same treatment Guaranteed best price in UK - same Intralase laser ... Half the price of elsewhere ... ”. Each of the promotions made price comparisons based on various prescriptions and made related savings claims, which ranged from £1,595 to £2,395. The prices stated for treatment with Optimax were £1,995 and £2,395.

Issue

Optical Express Ltd challenged whether the price:

1. comparisons and related savings claims were misleading and could be substantiated, because they believed the prices stated in the ads were not representative of those that either Optimax Laser Eye Clinics (Optimax) or Optical Express charged consumers;

2. claims related to Optimax treatments were genuine, because they understood Optimax customers were generally charged higher prices than those stated in the promotions.

Response

1. Optimax said they had removed the reference to Optical Express from their special offer page in response to the complaint.

2. They said many patients who were treated in March 2011 took up the £2,395 offer price stated. They said a relatively small proportion of patients paid more and the remainder took advantage of promotions that were not publicly available, for example via corporate discounts or similar. Optimax submitted spreadsheets of prices paid in March and more generally. They also submitted screen shots from their database along with a sample of records of card payments made by patients in that database, which they believed demonstrated the availability and uptake of the stated offer prices.

Assessment

1. Upheld

The ASA noted Optimax had amended the promotions. We also noted, however, we had not seen any evidence to demonstrate that the Optical Express prices, and related savings claims, in the ad were representative of the prices charged by Optical Express. Because the price comparisons and related savings claims had not been substantiated, we concluded that they were misleading.

On this point, the ads 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.  (Comparisons with identifiable competitors).

2. Not upheld

We noted the promotions offered prices of both £1,995 and £2,395 for IntraLase Wavefront LASIK treatment with Optimax. We noted the web pages either included an enquiry form labelled “Please fill in this form to qualify for this offer” or stated “This special offer is available to Telephone Callers only”, or “This offer is available to Telephone Callers and Online Bookings only”, and also provided a code for consumers to quote. We considered that made clear the stated prices were not the prices that were generally charged but were instead promotional prices that were available only using the relevant booking method.

We noted the information from Optimax’s database and payment records, which demonstrated that consumers had taken up IntraLase Wavefront LASIK at the prices of £1,995 and £2,395 stated. Because the ads made clear the prices stated were promotional rates only, and we had seen evidence that consumers had been treated for the advertised rates, we concluded that the price claims were not misleading.

On this point, we investigated the ads 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) and  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) but did not find them in breach.

Action

The ad must not appear again in its current form. We told Optimax to ensure they held adequate evidence before making comparative price claims in future.

CAP Code (Edition 12)

3.1     3.17     3.33     3.7    


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