Ad description
Two e-mails and a website for a bulk SMS provider:
a. The first e-mail, sent in July 2011, stated "WE ARE THE LOWEST COST PROVIDER. And if it works for you, we are the lowest cost provider of text messaging for business (see our competitor price comparison chart) in the UK - texts cost just 3.7p at the highest rate and go down to just 2.6p per text!". The e-mail provided a link to the comparison chart on the website.
b. The second e-mail, also sent in July 2011, stated "Do you use Text Messaging in your business? Here are the latest prices available for Bulk SMS in the UK across all competitors, split by the cost per message across different volumes purchased - compare who you're using ... Our new lower prices are live on the site and beat every single competitor in the UK in every volume band. We continually monitor these to ensure you are always getting the best deal". Underneath was a comparison table featuring Text Marketer's own prices and those of 18 of their competitors.
c. The website, viewed in July 2011, stated "Bulk SMS prices. Lowest Bulk SMS Prices, Highest Quality". Text in the form of a tick box underneath stated "We are never beaten on price per text ... at any volume; Prices are for the highest quality, direct, Tier 1 SMS gateway ...". Underneath was a table detailing their own prices. Further text below stated "PRICE CHECK - Compare our Bulk SMS Gateway Prices. Our objective is to provide the best possible sms service (a direct Tier1 sending gateway) for the lowest possible price. The table below demonstrates our commitment to price by comparing our sms prices with our competitors". The table featured Text Marketer's own prices and those of 18 of their competitors.
Issue
The complainant challenged whether:
1. the claims "LOWEST COST PROVIDER" in ad (a) and "We are never beaten on price" in ad (c) were misleading and could be substantiated, because he paid less with his provider; and
2. the comparison tables in ads (b) and (c) were misleading, because he believed some competitors were excluded from the comparison.
Response
1. & 2. Text Marketer Ltd (Text Marketer) said they were the lowest cost UK provider using a direct Tier 1 SMS gateway, and that they only listed competitors who operated in the same way. They explained that a Tier 1 gateway was where SMS messages were sent directly through a country's mobile networks for delivery within that same country. They said there were several types of 'grey routes' where messages were sent out through a foreign network to be delivered into another country, but that although sometimes cheaper, SMS messages sent by grey route might be delayed or not delivered at all. Text Marketer said they did not compare themselves against companies using 'grey routes' because they believed that would not be a fair comparison with the service they offered. Text Marketer said they believed the term 'Tier 1 SMS gateway' was well used and understood within the industry and by their consumers.
Text Marketer said prices in the chart were taken from their competitors' published price lists, and they believed it was clear on their website that the claim was based on high quality Tier 1 gateway bulk SMS prices. Text Marketer said they received regular mailings from their competitors' which informed them of any changes in their service prices, and they monitored their competitors' sites to see if there were any other changes to their services that would warrant them being included or excluded from the comparison table.
Assessment
1. Upheld
The ASA noted from Text Marketer's response that the price comparison claims related to other Tier 1 SMS gateway providers only, but also noted that we had not seen documentary evidence relating to their competitors' prices at the time the ad appeared. Notwithstanding that, we also noted that e-mail ad (a) stated "we are the lowest cost provider of text messaging for business ... in the UK" and considered that consumers would therefore understand the claim to be a comparison with all other bulk SMS providers in the UK, when that was not the case. We therefore considered that the claim in ad (a) was misleading.
We noted that the website ad (c) referred to Tier 1 SMS gateway, but we did not consider that that term would necessarily be familiar to consumers, or that they would necessarily be aware of which other providers offered a Tier 1 gateway service. Notwithstanding that, we also noted that the term 'Tier 1 SMS gateway' was used to describe Text Marketer's service only, and that the price comparison table was referred to more generally as relating to their competitors' prices. We therefore considered that consumers would understand the claim "We are never beaten on price" to mean that Text Marketer would always offer better prices than all of their competitors, rather than just those that Text Marketer had selected for offering a similar type of service. Because of that, and because we had not seen evidence that demonstrated that Text Marketer always offered lower prices than their competitors, we concluded that the claim in ad (c) was misleading.
On this point, ads (a) and (c) 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),
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration),
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) and
3.39
3.39
Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises.
(Price comparisons).
2. Upheld
We understood from Text Marketer's response that the price comparison tables featured in the ads related to other Tier 1 SMS gateway providers only, and did not include those competitors not considered by Text Marketer to be the highest quality direct, Tier 1 providers.
We noted ad (b) stated "Here are the latest prices available for Bulk SMS in the UK across all competitors" and "Our new lower prices are live on the site and beat every single competitor in the UK in every volume band. We continually monitor these to ensure you are always getting the best deal", and we considered that, in that context, consumers would understand the comparison table to include all other Bulk SMS providers in the UK. We understood, however, that that was not the case, and therefore considered that the comparison table in ad (b) was misleading.
As explained in point 1 above, we did not consider that it was made clear on the website that Text Marketer were comparing themselves to other Tier 1 SMS gateway providers only. We noted that text above the comparison table stated "The table below demonstrates our commitment to price by comparing our SMS prices with our competitors" and, in the absence of any further, clear information about how many or which companies were included in the table, we considered that consumers would understand the comparison table on the website to include all of Text Marketer's competitors. Because we understood that was not the case we concluded that the comparison table in ad (c) was misleading.
On this point, ads (b) and (c) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
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),
3.7
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),
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration) 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).
Action
The ads must not appear again in their current form. We told Text Marketer not to claim that they were the lowest cost provider and never beaten on price unless they held robust documentary evidence to support the claims, and made clear the basis on which the claims were made. We also told them to make sure that clear information about which companies were featured in the comparison table was included in their ads.
