The website for Harveys, a furniture retailer, www.harveysfurniture.co.uk, seen on 25 October 2018 featured an image of a dining table and chairs with text beside, which stated “GUARANTEED Christmas DELIVERY”. A gold banner underneath stated “GUARANTEED Christmas DELIVERY”. Smaller text underneath said “Selected items only”.
The complainant challenged whether the claim “GUARANTEED Christmas delivery” was misleading and could be substantiated.
Steinhoff UK Retail Ltd t/a Harveys said they tried to manage consumers’ expectations during the normal ordering process by a clause in the general terms and conditions. They said a large proportion of purchases were made bespoke, with some lines manufactured outside the UK received by sea and road. As such, they were not able at the time a customer placed an order in store or on the website to give a precise date for home delivery. However, they confirmed that, while “Christmas” was commonly accepted as a period of days starting with Christmas Day, their intention would be to deliver up to and including 24 December.
Harveys referred to an extract of a further clause which stated “We will contact you where applicable to arrange delivery and to ensure that full payment has been made prior to your Order being delivered. We will offer you an initial delivery slot but if this is not acceptable we will offer you a maximum of two reasonable alternatives”. They said that explained that the final delivery date would be agreed with the customer, which would be within the estimated delivery time indicated when the order had been placed.
Harveys said they knew that in the run-up to Christmas, consumers made purchases that they would want to have in their homes for the holiday period and they assisted customers with that by using their data to see what the supply chain lead time was and what the turnaround capability of their warehousing and home delivery service was. Therefore, items offered for purchase in October might be capable of delivery by Christmas, but that same line offered in, for example, November, would not be able to be delivered by then. To find out whether products could be delivered in time for Christmas, Harveys said they reversed the calculation, working back from a possible customer delivery date including delivery capability and supply chain data and they identified which products could or could not be delivered in time.
Harveys referred to the text in the ad which they said made clear that the delivery guarantee applied to carefully selected lines only. The offer was made clear to potential customers by attaching the offer banner or roundel to the relevant item on the web picture, or affixing to the item in store, which differentiated the items not within the offer. Harveys said during the period that the selected products were identified, the variables in the supply chain and delivery process were constantly monitored and the data used to review all selected lines. When the data indicated a point beyond which they could not guarantee delivery by Christmas, that line was withdrawn from the promotion. Stores and website management were informed and both website indications and the physical in-store point of sale material would be removed. That was communicated to stores to action as required, but consumers who had ordered within the offer would have the items delivered by Christmas.
Harveys said that monitoring and updates for stores could be provided “live”, but typically, updates would be weekly and timed to be within the known parameters, in order for the product to be removed from the offer in a timely manner so that no potential customers were misled. It was possible to send an “instant” communication to stores, but in relation to the matter, planning would mean that would not be necessary or likely.
Harveys said they did not think it was necessary to have any additional terms and conditions for the current ad, as there were no qualifications or restrictions which applied. They said that notwithstanding the general clause in the terms and conditions, it would be commonly accepted that the positive use of the term “guaranteed delivery” would be contractually binding.
Harveys provided information on the stock levels for the dining table and chairs set shown in the ad as at 6 November 2018 (the ad was seen on 25 October). They said the data showed that the stock levels were very high for both the table and the chairs, exceeding the pending orders for the product.
The ASA considered that consumers would understand by the claim “guaranteed Christmas delivery … selected items only” that certain items from the Harveys range, would be delivered to consumers’ homes by 24 December in time for Christmas Day. We also considered that the word “guaranteed” implied that performance of delivery of the product by that date would be certain, barring exceptional or unforeseen circumstances beyond Harveys’ control.
The “guaranteed Christmas delivery” claim appeared as a gold bauble next to an image of a dining table and chairs which we considered implied that this particular product would be able to be delivered by Christmas. Similarly the banner underneath featured the same claim, with the additional statement “Selected items only”, which was in smaller text underneath the main claim. It appeared next to an image of another dining table and chairs, although it was not clear whether the product shown was included amongst the selected items.
We noted there was no date specified in the ad by which an order had to be placed to make the Christmas delivery date, although we understood that items purchased in October, when the ad was seen, could be delivered by Christmas. We considered that although Harveys said they were not able to give a precise date for home delivery when a customer placed an order, an order placed for a product covered by the claim would expect delivery to be made by 24 December at the latest.
We understood that some of the products were made bespoke outside of the UK and delivered into the UK by sea and road and there may be unforeseen circumstances, beyond the control of Harveys which could affect delivery by Christmas. We requested information on how the products and variables in the supply chain were monitored, how soon lines were withdrawn and when stores and the website were amended if Christmas delivery could not be met. We noted Harveys said their data was constantly monitored and that a product could be removed from the offer in a timely manner, but they did not specify what methods were used to monitor factors which affected Christmas delivery, nor did they provide any documentation showing whether or not the items included in the offer had been affected.
We also requested evidence from Harveys of the number of occasions and the reasons which they considered were beyond their control for when products were not delivered in time for Christmas in line with the guarantee. Harveys, however, did not supply that information.
We did not consider that because stock levels for the product shown in the ad exceeded the number of orders, that this was sufficient to demonstrate that the product would be guaranteed to be delivered by Christmas, in line with the claim.
We also noted that there was no information included in the ad which referred to any limitations to the guarantee. The general terms and conditions in the “Delivery” section stated “all delivery times quoted at the time of the order are estimated and so cannot be guaranteed. Whilst we will make every effort to deliver within the estimated delivery time, occasionally deliveries may be affected by factors beyond our control”. We considered that the terms for the selected items to be delivered under the guaranteed Christmas delivery were different to those for items not covered by the guarantee because customers would have no expectation of receiving the latter by 24 December. However, there was no mention of any terms and conditions which related specifically to the Christmas delivery guarantee and the fact that all delivery times were stated as not being guaranteed appeared to contradict the guaranteed Christmas delivery claim.
We therefore concluded that the claim “guaranteed Christmas delivery” had not been substantiated and was likely to mislead.
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).
The ad must not appear again in the form complained of. We told Steinhoff UK Retail Ltd t/a Harveys not to make claims of guaranteed Christmas delivery if that was not the case.