Background
Summary of Council decision:
Two issues were investigated, one of which was Upheld and the other was Not upheld.
Ad description
A TV and press ad, shown in December 2014, for £8 Louis Delaunay champagne from Tesco.
a. The TV ad featured a party with sparkling wine being opened and poured. The voice-over stated, "The award winning Louis Delaunay champagne. Just £8. So why wouldn't you?" On-screen text stated, "Over 18s Selected stores and availability. Max 12 per customer. Louis Delaunay Champagne".
b. The press ad included the text "The award winning Louis Delaunay Champagne. Better than half price. Hurry while stocks last". Smaller text included "in store online mobile tesco.com/groceries" and "You must be over 18 to purchase alcohol. Selected UK Stores. Subject to availability. 12 bottle maximum purchase".
Issue
1. Two complainants challenged whether the promotion had been administered fairly because they had been unable to take advantage of the offer due to lack of stock.
2. One of the complainants challenged whether the claim "maximum 12 bottles" in press ad (b) was misleading because when they tried to purchase online, they were restricted to six bottles.
Response
1. Tesco Stores Ltd said the response to the promotion was three times higher than a similar previous promotion because of an unexpected customer response. They explained that the 2013 promotion was through TV advertising only and offered the same champagne at £10 a bottle. They explained that this previous promotion ran for seven days during the same pre-Christmas period but was then increased to 13 days because of the amount of stock remaining after the initial period. They said that when establishing the number of cases of champagne (containing six bottles) that were required to meet demand for the 2014 promotion, they had increased the stock numbers from the 2013 promotion by 40% in order to take into account the more attractive offer (£8 rather than £10 per bottle), and the shorter response period (7 days rather than 13). They provided the sales data (in-store and online) for the similar 2013 promotion (the initial 7-day promotion) and the 2014 promotion.
They said that they became aware of the very high response on the first day of the promotion and subsequently withdrew the ads when it was clear that demand was going to be extraordinarily high. They also stated that the ads advised consumers that the offer was subject to availability.
2. They said that the 12 bottles per customer limit did not extend to online purchases through Tesco.com and that purchases through their website were restricted to six bottles per customer. They believed the ads did not imply that Tesco made a commitment to customers that the in-store offer would be available online and that the on-screen text and qualifying text in the ads stated "Selected stores only". They also said that the product detail page of their groceries website included the message "While stocks last Maximum 6 per order".
Assessment
1. Not upheld
The ASA understood that Tesco had calculated their estimate of the likely response to this promotion based on a previous TV-only promotion for the same champagne in a similar period (the early build up to Christmas) in 2013 and that they had included a 40% uplift to take into account the fact that the offer was £2 cheaper than the previous promotion and the fact the 2014 promotion was to run for a shorter period. We examined the sales figures for the 2013 promotion (which included a breakdown of sales per participating store for 2013 and 2014) and noted of the hundreds of stores in which the promotion ran, the vast majority still had stock left at the end of the initial 7-day 2013 promotion, suggesting the stock levels had been accurately predicted for that promotion. We therefore considered it was reasonable to assume that, based on that response, the 40% uplift in stock for 2014 was likely to take into account any increased response which was likely to result from the £2 price reduction from the £10 promotion in 2014 and the fact the 2014 promotion was also advertised in the national press.
The sales figures for 2014 demonstrated a significant increase in sales compared to 2013 from the first day of the promotion across Tesco stores in the UK. We noted this figure was significantly higher both in total and in the majority of individual stores and that this pattern continued throughout the week. We also noted, the number of stores with no stock in the final day of the promotion was significantly higher than 2013 and that some stores had sold out of stock well before the end of the promotional period.
We noted the sales data showed a 49% increase of bottles sold in the 2014 promotion compared to the 2013 promotion and that again this demonstrated a significant increase in online activity compared to the previous promotion upon which the stock levels were based.
We considered that, based on the previous promotion, the £8 price and the additional use of press ads, Tesco had made a reasonable estimate of demand by increasing the number of cases in stock by 40%. We therefore considered that they could not have anticipated the significant response from day one and throughout the promotion resulting in high street and online stores running out of stock before the end of the promotional period.
We understood Tesco were aware of the significant increase in response on the opening day of the promotion and that they may not have been able to meet the demand if the response continued in the same way and that they had immediately cancelled all future advertising of the promotion, including the online promotion on their website.
We therefore concluded Tesco had made a reasonable estimate of demand and, when it was apparent the response was much higher than anticipated, had taken appropriate steps to prevent the ads from being broadcast or published again.
We therefore concluded that the promotion had been administered fairly and that the ads did not breach the Code.
On this point we investigated TV ad (a) under BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
3.2
3.2
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Misleading advertising),
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is 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
3.28
3.28
Broadcasters must be satisfied that advertisers have made a reasonable estimate of demand.
(Availability), but did not find it in breach.
On this point we investigated press ad (b) under CAP Code (Edition 12) rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
3.3
3.3
Ofcom must ensure that the standards from time to time in force under this section include:
a) minimum standards applicable to all programmes included in television and radio services; and
b) such other standards applicable to particular descriptions of programmes, or of television and radio services, as appeared to them appropriate for securing the standards objectives."
Section
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is 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.
5).
(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
3.2
3.2
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
,
3.2
3.2
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Availability), but did not find it in breach.
2. Upheld
We considered that without further qualification, the reference to the 12 bottles maximum in ads (a) and (b) would be understood by consumers as a reference to the maximum number of bottles that would be sold at participating stores, including the online store. We therefore considered that consumers would expect the 12 bottles limit to also apply to the online store. Because online sales of the champagne were restricted to six bottles, we concluded that the ads were misleading.
On this point TV ad (a) breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
3.3
3.3
Ofcom must ensure that the standards from time to time in force under this section include:
a) minimum standards applicable to all programmes included in television and radio services; and
b) such other standards applicable to particular descriptions of programmes, or of television and radio services, as appeared to them appropriate for securing the standards objectives."
Section
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is 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.
5).
(Misleading advertising) and
3.10
3.10
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualifications).
On this point press ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
3.3
3.3
Ofcom must ensure that the standards from time to time in force under this section include:
a) minimum standards applicable to all programmes included in television and radio services; and
b) such other standards applicable to particular descriptions of programmes, or of television and radio services, as appeared to them appropriate for securing the standards objectives."
Section
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is 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.
5).
(Misleading advertising) and
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is 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.
(Qualifications).
Action
Ads (a) and (b) should not appear again in their current form. We told Tesco Stores Ltd to ensure ads would make clear to which type of store the referenced maximum bottle restrictions applied.
