A national press ad for Tesco, seen in October 2015, was headlined “Never pay more for your branded shop”. Text below stated, “If it’s cheaper at Asda, Morrisons or Sainsbury’s, we’ll take the money off your bill at the till”. It included an image of a character associated with a flour brand holding an icon that carried the text “Brand Guarantee”.
Small print included “Min. basket of 10 different products, including 1 comparable branded product. Total price of branded grocery shop compared with Asda, Morrisons and Sainsbury’s and if cheaper elsewhere the difference will be taken off your bill …”.
Sainsbury's Supermarkets Ltd, who believed the ad did not make the minimum purchase restriction sufficiently clear, challenged whether the claim “Never pay more for your branded shop” was misleading.
Tesco Stores Ltd believed the ad communicated the scheme clearly to consumers and was consistent with the industry’s wider approach to price match advertising. They understood consumers were familiar with how price match schemes worked and that a minimum spend requirement generally applied. They believed the ad made clear that a “branded shop” was made up of multiple products, which was something consumers were also already familiar with. Tesco considered the combination of the text and the Brand Guarantee logo communicated to consumers that the ad related to a price match scheme for branded products in which prices were matched against ASDA, Morrisons and Sainsbury’s, and that it worked by taking money off at the till if the branded shop cost more at Tesco.
Tesco said that of the conditions set out in the small print the first was the minimum purchase requirement, and that was communicated in a context in which, as above, it was clear that the scheme applied to the shop as a whole. The first part of the small print also made clear what qualified as a branded shop and informed consumers where they could find further information. Tesco accepted that the minimum purchase requirement was a condition that should be brought to consumers’ attention, however, they believed it was sufficient to do so in small print, because it was not so significant as to contradict the headline claim (but instead clarified the nature of a “branded shop”). They also said the condition was of no more importance than those such as geographical restrictions or maximum refunds, which were typically also in small print. They said price match schemes were usually aimed at shops that included multiple items and that their data showed the average Brand Guarantee shop contained 24.4 items, whereas the minimum number to qualify for the match was ten. Tesco had taken advice from the CAP Copy Advice team, who believed the ad was likely to be acceptable in relation to the minimum purchase requirement.
The ASA considered consumers were likely to be familiar with the concept of price match schemes, but that they would not necessarily be aware of the conditions involved, or that there might be a minimum purchase requirement, in particular if an ad suggested otherwise. Research data published by the CMA (included in its July 2015 report on Pricing Practices in the Groceries Market, produced in response to a super complaint from Which?), indicated that of respondents who correctly understood that their ‘planned shop’ supermarket had a price matching scheme, 25% reported that they had no idea how it worked and a further 40% had only a rough idea. We agreed with the CMA’s statement about the importance of retailers communicating clearly with consumers to help them understand how schemes operated and enable them to take informed decisions.
We acknowledged Tesco had consulted the Copy Advice team, whose view was that it was likely to be acceptable to set the minimum purchase requirement out in small print. The ad included a single brand character, a prominent reference to the Brand Guarantee and the text “branded shop”. We considered it was clear the scheme related only to branded, as opposed to own-brand, items. However, we also considered it was not sufficiently clear from the main body of the ad that it was necessary to buy multiple products in order to qualify. In addition, we considered “Never pay more for your branded shop” was an absolute claim that was likely to be understood by consumers to mean that if they purchased branded good(s), they would qualify for the price match against the named retailers. While the small print said it was necessary to purchase at least ten different items, including one comparable branded product, for the Brand Guarantee to apply, we considered that contradicted the headline claim and was not sufficiently prominent to counteract the misleading impression created by it. We therefore concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
Marketing communications must not mislead the consumer 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 the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (Misleading advertising), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification) and 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
The ad must not appear again in its current form. We told Tesco Stores Ltd to ensure significant conditions were made sufficiently clear in future, to avoid being misleading.