A national press ad for Tesco was headlined "Better than half price". It included a large image of a leg of lamb, which was labelled "£4/kg". Further text stated "Enjoy Easter together Tesco Whole Lamb leg joint 1.3kg - 3.5kg … Tesco Half Leg lamb joint 0.5kg - 1.5kg £11/kg £5/kg £4/kg". The series of prices appeared below each of the two products, with the two higher prices struck out in both cases. Small print included "… Selected UK stores. Subject to availability … Offer ends 25/04/2014".
The complainant challenged the availability of the products, which were out of stock in his local store.
Tesco Stores Ltd (Tesco) said they had previously run similar promotions on the same items. On each occasion sales data from the previous promotion was used to forecast demand and additional stock was sourced accordingly. They were confident there was sufficient stock to generally meet customer demand for the promotional period. There were good stock levels in the Swansea store the complainant visited, and nationwide. The ad included the text "subject to availability" which they considered made clear that there might be isolated instances of stock not being available due to unprecedented demand.
Tesco said on the day the complainant visited the store − Easter Saturday − they had very good availability of the products nationwide and there was strong take-up by customers. There was also stock available in the relevant Swansea store on that day and they sold a number of both products, but due to particularly high demand in that store on the preceding days, in comparison to the rest of the promotional period, the store did run out of stock during Easter Saturday. However, a further delivery was due on the next trading day (Easter Monday) and that was an isolated occasion, which was not representative of the availability of the products in that store or nationwide throughout the promotional period.
They provided sales data for the previous “better than half price” promotion on the products and also on a half-price promotion on the lamb that had taken place since that. Tesco also gave details of the sales they made during the Easter 2014 promotion and of stock levels before, during and after the promotion. They said such strong sales could not have been achieved if they did not have stock available. Tesco also provided data on the stock levels at other Swansea stores before, during and after the promotion and said staff would have been happy to help the complainant find the lamb at another store.
The ASA understood that estimated demand for the advertised promotion was based on a previous ”better than half price” promotion on the same products which had taken place the previous year, also over Easter. While the previous promotion had lasted for one week longer, both had started at a similar time before the Easter bank holiday and we considered that was a reasonable basis on which to estimate demand. Although the relevant store had sold out of both products at the time the complainant visited, the evidence demonstrated that sales had been made in greater volumes than on previous days of the promotion on the two days preceding his visit and that stock was available in the store, throughout the promotion, until that point. We did not have information on the stock levels in the previous promotion, however we noted that the 2014 sales (nationwide and in the relevant Swansea store) exceeded those in the same week preceding the Easter bank holiday in the 2013 promotion. We noted that some sales of both items were also made on the day in question and that there was stock of one or both products at three other local stores on that day. In addition, sales of both products continued to be made, nationally and at the relevant Swansea store, on following days as the promotion continued. While we acknowledged the complainant's disappointment, we considered Tesco had made a reasonable estimate of demand and therefore concluded that the ad was not misleading.
We investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.27 3.27 Marketers must make a reasonable estimate of demand for advertised products. and 3.29 3.29 Marketers must monitor stocks. If a product becomes unavailable, marketers must, whenever possible, withdraw or amend marketing communications that feature that product. (Availability) and 8.9 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. and 8.10 8.10 Promoters must be able to demonstrate that they have made a reasonable estimate of the likely response and either that they were capable of meeting that response or that consumers had sufficient information, presented clearly and in a timely fashion, to make an informed decision on whether or not to participate - for example regarding any limitation on availability and the likely demand. (Sales promotions), but did not find it in breach.
No further action necessary.