Background
Summary of Council decision:
Five issues were investigated, four were Upheld and one was Not upheld.
Ad description
Five ads for Optimax:
a. A banner ad stated "special offer 1/2 Price Laser Eye Surgery .. exact same laser technique at many top clinics but up to 1/2 Price".
b. A sponsored search entry stated "1/2 Price Laser Eye Surgery Unbeatable Laser Eye Surgery Value Unbeatable costs + Lifetime aftercare".
c. An entry on an affiliate site stated "HALF PRICE Laser Eye Surgery Offer - Save more than £2000! ... The laser eye surgery cost will vary depending where you are in the UK. Some clinics are even charging £4000 for regular treatment".
d. An entry on another affiliate website stated "Optimax May 1/2 Price Offer; Save up to £2,295 off the competitors price for the exact same laser eye surgery and get 18 months interest free credit too. You Save: £2295".
e. An e-mail delivered in July 2012 stated in the subject field "Half price laser eye surgery". Text in the body copy included "... Save 50% on the exact same laser technique used at many top clinics" and the footnote stated "... Exact same laser technique at many top clinics but half price. Written details are available upon request. This offer cannot be used in conjunction with any other offer & only applies to bilateral IntraLase Wavefront LASIK treatment ...".
Issue
Optical Express challenged whether the following claims were misleading and could be substantiated:
1. "1/2 Price Laser Eye Surgery" and "up to 1/2 Price" in ad (a);
2. "1/2 Price Laser Eye Surgery" in ad (b);
3. "HALF PRICE Laser Eye Surgery Offer" in ad (c);
4. "May 1/2 Price Offer Save up to £2,295 off the competitors price for the exact same laser eye surgery" and "Half price laser eye surgery Save up to £2,295 off the competitors price for the exact same laser eye surgery" in ad (d); and
5. "Half price laser eye surgery" and "Exact same laser technique at many top clinics but half price "in ad (e)
.
Response
1.–5. Optimax Laser Eye Clinics (Optimax) said the claim was based on the prices of several top clinics, one of which they believed was an appropriate UK laser clinic for comparison because, like Optimax they had 30 clinics nationwide, making it a like-for-like comparison. They stated the price (for both eyes) at this clinic was twice the amount specified by Optimax for the equivalent treatment offered in this promotion and illustrated this with the charges detailed on the competitor clinic’s website. They believed the prices offered by other prominent clinics illustrated the point further and again provided online pricelists taken from the competitor’s website of the available eye surgery, including the LASIK techniques. They stated that these prices were in the public domain and that it was common for UK Laser eye surgery clinics to charge twice as much for treatment comparable with the procedure offered at £2295 for both eyes at Optimax in this promotional offer.
They stated that with regard to ads (a) and (b), the information about the comparative prices was available on a landing page upon clicking on the banner or hyperlink and that consumers generally viewed these type of ads as an invitation to find out more.
Assessment
1. Upheld
The ASA noted clicking on banner ad (a) linked consumers to a page on the Optimax website which indicated that the offer related to a specific procedure (Intralase Wavefront LASIK) and included a price comparison for that procedure between Optimax and a direct competitor. Although significant conditions were available to consumers who clicked on the banner there was no text within the banner to direct consumers to the fact that such conditions existed. We therefore considered the content of banner ad (a) needed to be considered as a stand-alone ad.
We considered the claim "special offer 1/2 Price Laser Eye Surgery" in ad (a) would be understood within the context of the rest of the claim ".... exact same laser technique at many top clinics but up to 1/2 Price" to mean that laser eye surgery offered by Optimax was half the price of laser eye surgery offered by some other large nationwide clinics and, in the context of the qualifying text "... exact same laser technique at many top clinics but up to ½ Price", as a claim that Optimax would always be cheaper for that technique.
Optimax supplied evidence for three providers, including a nationwide clinic and two smaller laser surgery providers, but did not supply evidence to demonstrate that two smaller providers were directly comparable for the purposes of the claim or that the information on the three clinics was sufficiently comprehensive to support the "many top clinics" price comparison claim.
Evidence was supplied which demonstrated that the price for a direct competitor's "Ultra Elite" LASIK treatment was double that of the IntraLase Wavefront LASIK technique offered by Optimax and further evidence demonstrated that the same technique was available at almost double the price at the two other clinics. However,
because the ad did not make clear that only one specific laser technique was included in the offer and because evidence was not submitted to demonstrate that this technique was generally cheaper at Optimax or typically offered at half the price of other directly comparable providers, we concluded that the ad was misleading.
On this point ad (a) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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),
3.33
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),
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),
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
and 8.18 (Sales promotions).
2. Upheld
Clicking on sponsored link (b) linked consumers to a page on the Optimax website which indicated that the offer related to a specific procedure (Intralase Wavefront LASIK) and included a price comparison for that procedure between Optimax and a direct competitor. Although significant conditions were available to consumers who clicked on the sponsored link, there was no text within it to direct consumers to the fact that such conditions existed. We therefore considered that the sponsored link needed to be considered as a stand-alone ad. We considered that claim "1/2 Price Laser Eye Surgery" would be considered within the context of the rest of the sentence "Unbeatable Laser Eye Surgery Value Unbeatable costs + Lifetime aftercare" and would be understood by consumers to mean that laser eye surgery at Optimax was half its normal price and was cheaper than all other laser eye surgery providers. Because robust evidence was not submitted to demonstrate that laser eye surgery at Optimax was half its own normal price or was cheaper than all other laser surgery providers, we concluded that the claim was misleading.
On this point ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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),
3.33
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),
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),
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
and 8.18 (Sales promotions).
3. Not upheld
We considered the claim "HALF PRICE Laser Eye Surgery Offer" in ad (c) would be understood with the rest of the text "Save more than £2000! ... the laser eye surgery cost will vary depending where you are in the UK. Some clinics are even charging £4,000 for regular treatment" and would be understood by consumers to mean that the standard laser eye treatment at some clinics would be £4,000. Because Optimax had demonstrated that some standard laser eye surgery did cost this much at some clinics and that £2000 of savings could be achieved against those clinics at Optimax, we concluded that the claim was not misleading.
On this point ad (c) we considered the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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),
3.33
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),
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),
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
and 8.18 (Sales promotions) but did not find it in breach.
4. Upheld
We considered that the claim "Optimax May 1/2 Price Offer; Save up to £2,295 off the competitors price for the exact same laser eye surgery and get 18 months interest free credit too. You Save: £2295" in ad (d) would be understood to mean that consumers could save up to £2,295 off all competitors’ prices for all comparative laser eye surgery. Although information was supplied which demonstrated that £2295 could be saved compared the Wavefront LASIK surgery at the clinic Optimax believed to be its closest competitor (and similar savings from the other two companies identified by Optimax as comparable competitors) evidence was not presented to demonstrate that these same savings would be achieved against all comparable clinics offering this same technique or that these savings could be achieved for all laser eye surgery techniques. We therefore concluded that ad (d) was misleading.
On this point ad (d) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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),
3.33
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),
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),
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
and 8.18 (Sales promotions).
5. Upheld
Whilst the e-mail ad made clear that the offer applied only to the IntraLase Wavefront LASIK treatment, we considered consumers would understand the claim "save 50% on the exact same laser technique at many top clinics" to mean that compared to clinics offering the same technique, Optimax was 50% cheaper. Although evidence was presented to demonstrate that this was a likely saving compared to some clinics, evidence was not presented to demonstrate that this was a likely saving compared to most directly comparable laser eye surgery clinics.
On this point ad (e) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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),
3.33
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),
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),
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
and 8.18 (Sales promotions).
Action
The ads must not appear again in their current form. We told Optimax to ensure future ads made clear the exact nature of the price comparison and that those comparisons were accurate and fair.
