A product listing on the Simba website, www.simbasleep.com, seen on 5 January 2022, for the “Simba Hybrid Mattress”. The text “£919” was crossed out, and “£588.16” was written next to it. “NEW CUSTOMER PRICE” was stated next to the listed prices. At the top of the page, text in a banner stated “New Customers! 36% off £300+ (T&Cs)”. A countdown clock was seen next to this text.
Emma Matratzen GmbH challenged whether the crossed-out price and associated savings claim were misleading.
Simba Sleep Ltd asserted that the price comparison featured in the ad was not against a previous price. As such, they understood that the ad was compliant with the CAP Code when it was live. They also did not believe that any CAP Advertising Guidance relating to new customer offers existed at the time of the promotion.
They said that the promotional price was available only to new customers and that condition was stated clearly and accurately in the ad. They emphasised that the condition was also highlighted in the accompanying terms which explained that new customers must not have previously made any purchase from the Simba Sleep website. They also referred to a previous ASA ruling in which a new customer offer was found to be misleading because the ad did not sufficiently communicate the requirement to be a new customer in order to take advantage of the offer. They re-iterated that this was not the case with their ad.
Furthermore, they confirmed that during the seven-day period between 4 and 10 January 2022, the mattress was sold at £919 to those customers who were not eligible for the new customer promotion. Consequently, they believed that “£919” represented a realistic and genuine selling price. They likened the “new customer” offer to discounts that were offered to NHS staff or students because the two different prices applied to two different categories of consumer and the ad compared an existing customer price with a new customer price.
The ASA noted the crossed-out price of “£919”, alongside which was text stating £588.16 NEW CUSTOMER PRICE”. We acknowledged that the promotional price saving applied to new customers and considered that was sufficiently signposted. However, we considered that consumers would understand from the struck through price of £919 that the new customer price represented a reduction against the price at which the mattress was usually sold. We considered that consumers would also understand from the claim “New Customers! 36% off” that they would be able to achieve a genuine saving of 36% against the usual selling price of the product. We considered that impression was reinforced by the presence of the countdown clock, which consumers were likely to interpret to mean that the price of the mattress would revert to the higher price once the countdown ended.
We did not receive any pricing history for the product from Simba Sleep, and we could therefore not determine whether the referenced higher price was the usual selling price. However, we noted several reference and promotional prices for the Simba Hybrid mattress seen in screenshots of the product listing over a three-month period shared by the complainant. We noted that the reference price of the mattress fluctuated throughout that period. The reference price of the mattress was “£899” on 27 and 28 December 2021, “£919” on 5 January 2022, and “£999” on 2 March 2022. Furthermore, the complainant submitted evidence showing that the mattress in 2021 had been on sale for 71% of the year. Given that the reference prices changed throughout a short period of time and the mattress had previously been discounted for a significant portion of time, we considered that Simba Sleep had not demonstrated that the reference price of “£919” was the usual selling price of the mattress at the time of sale. Furthermore, we considered the promotional discount offered to new customers in the ad and that eight days prior, the mattress had been available to purchase at a cheaper price of £539.40 to both new and existing customers, rather than the more expensive promotional price of £588.16 which was offered exclusively to new customers in the ad.
Because we had not seen evidence that the savings claim represented a genuine saving against the usual selling price of the product, we concluded that the savings claims in the ads were misleading.
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) 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).
The ad must not appear again in the form complained of. We told Simba Sleep Ltd to ensure their future savings claims did not mislead and to ensure they substantiated savings claims against the usual selling price of their products.