Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A blog post on the website www.playpennies.com, which contained product reviews and offers, stated "Disney Cars 2 Junior Helmet £2.49 @ Sports Direct - Sports Direct have up to 90% off on a variety of things, including this Disney Cars 2 Junior Helmet, which takes it from £24.99 to just £2.49. That's just huge. Even if you include shipping, which brings it to £6.48, it's still a bargain". The post included a link to the Sports Direct website.
The complainant challenged whether:
1. the commercial intent of the ad was unclear; and
2. the claim "90% off on a variety of things, including this Disney Cars 2 Junior Helmet, which takes it from £24.99 to just £2.49" was misleading and could be substantiated, because she did not believe the product was generally sold at £24.99.
1. Teepee Disco Ltd, t/a PlayPennies, (PlayPennies) described their website as a blog. They explained that their writers had seen a deal for the "Disney Cars 2" helmet available at Sports Direct and had decided to write about it. They said their site used an automated system which created affiliate links behind some merchant links, including the one to the Sports Direct website in the blog entry for the "Disney Cars 2" helmet. However, writers on the site were not aware at the time of publishing a post whether or not the link would be converted to an affiliate link. They said writers had access to a spreadsheet of the latest affiliate merchants, to which they could refer and use to update blog posts retrospectively, in order to identify affiliate links as necessary. They said their practice was to add an asterisk to all affiliate links, referring to text shown at the bottom of every page of the website. That text stated that PlayPennies was an affiliate site and they received commission from users clicking through and purchasing items from certain retailers. All affiliate links were indicated by an asterisk and were operational at the time of publication.
PlayPennies acknowledged that the link to the Sports Direct website, although it had been an affiliate link at the time of publication, had not been marked as such. They said that was due to an error which had later been rectified. After further consideration, they removed the blog post in question from their website.
2. PlayPennies said they quoted sale prices based on the information given on the retailer's website. They said the "Disney Cars 2" helmet had since been removed from the Sports Direct website, but provided links to the same and similar products on a variety of retailers' websites, which they said showed similar prices to those quoted in the post on their website. They said the original price they had quoted (£24.99) was taken directly from the Sports Direct website and, as such, considered that it would be for Sports Direct to show that that price was not misleading.
The CAP Code required marketing communications to make clear their commercial intent if that was not obvious from the context. The ASA noted that the website was written in the style of a blog with frequent updates about deals and competitions, as well as product reviews and celebrity parenting news, and considered that that was likely to imply that the content was entirely editorial. However, we understood that some of the links contained in the blog posts were affiliate links, for which PlayPennies would receive commission for any custom gained by the merchant through their appearance on the PlayPennies website. We considered that those links were therefore commercial in nature, and needed to be clearly identified as such.
We understood that the blog entry relating to the "Disney Cars 2" helmet had contained an affiliate link at the time of publication. It should therefore have immediately been marked as such. Although we welcomed PlayPennies' actions to remove the blog post after having received the complaint, because the marketing communication had not made clear its commercial intent from the first point at which the affiliate link had been active we concluded that it had breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications).
The ad stated "Sports Direct have up to 90% off on a variety of things, including this Disney Cars 2 Junior Helmet, which takes it from £24.99 to just £2.49". We considered that the claim clearly linked both stated prices to Sports Direct and therefore did not go so far as to imply that the product would generally be sold at £24.99 by other retailers. However, it did imply that the product was typically sold at that price by Sports Direct, outside of the temporary sale period. We considered that PlayPennies had a responsibility to ensure that, at the time the merchant link contained in a post was converted into an affiliate link, the claims within that post were compliant with the CAP Code. Because they had not provided any evidence demonstrating that the product in question was typically sold by Sports Direct at £24.99, we concluded that the claim was misleading.
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) 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 its current form. We told Teepee Disco Ltd to ensure that they always identified affiliate links to make clear their commercial intent, and that they held appropriate substantiation for price claims within those posts.