Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Two ads for The Fragrance Shop, seen in November 2018:
a. The home page of The Fragrance Shop, www.thefragranceshop.co.uk, featured a banner that stated "BLACK FRIDAY COUNTDOWN. UP TO 60% OFF*". Further text stated "AN EXTRA 15% OFF SELECTED LINES". Smaller text linked by an asterisk stated "*Selected lines only".
b. A paid for search listing stated "Pre Black Friday Countdown. Up to 60% Off + Extra 15% Off...Up to 60% Fragrances + Extra 15% Off Selected Lines".
The Perfume Shop Ltd challenged whether the following claims were misleading and could be substantiated:
1. "up to 60% off"; and
2. "extra 15% off selected lines".
TFS Stores Ltd t/a The Fragrance Shop provided data relating to items included in the sale, which indicated that 20% of the products had been discounted by 60% off the recommended retail price (RRP).
1. & 2. Upheld
The ASA considered that consumers would understand the claim “up to 60% off” to mean that a significant proportion of products were discounted at the maximum saving of 60% off.
We noted from the data provided by TFS that the savings were based on the RRP for the products. However, in the absence of any qualification in the ad regarding the basis of the prices against which the savings were being made, we considered that consumers were likely to understand that the savings claim “up to 60% off” was based on the usual selling prices for the items in the sale. We therefore expected to see evidence to demonstrate that a significant proportion of items in the sale had been discounted at the maximum saving of 60% off the price at which they were usually sold by TFS, and that the savings claim therefore represented genuine savings against the usual selling price.
We further considered that consumers would understand from the references to “an extra 15% off selected lines” that the price of some products in the sale would be reduced by a further 15% off the usual selling price (i.e. that an item discounted by 60% in the sale would be discounted by a total of 75% off the usual selling price with the additional discount).
We assessed the data provided. TFS had provided data for 60 fragrances, which they said was the sum total of products included in the sale. They supplied pre-sale prices for 50% of the products, which they said they believed provided sufficient coverage to demonstrate that a significant proportion were discounted at 60%.
We noted the proportion of products at the maximum discount according to TFS’ data. We requested the pricing history of those products. We were provided with data for nine out of the twelve products, which showed that some of those products had been on sale for longer at the RRP than at a lower price.
The complainant, The Perfume Shop Ltd, had carried out their own monitoring of the TFS website during the sale. We understood that they had counted a total of 135 products in the sale, of which only 1.5% were priced at 60% off. Given that discrepancy and the incompleteness of the data provided to us by TFS, we had concerns about the adequacy of the evidence.
Furthermore, the “extra 15% discount” had been applied to the sale price (following the initial discount), meaning that a product discounted by 60% in the sale, with the additional discount was actually discounted by 66% off the pre-sale price. That was not in line with how consumers were likely to view the claim.
We concluded that the ads were misleading and breached the Code.
Ads (a) and (b) 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), 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. and 3.22 3.22 Price claims such as "up to" and "from" must not exaggerate the availability or amount of benefits likely to be obtained by the consumer. (Prices).
The ads must not appear again in the form complained about. We told TFS Stores Ltd t/a The Fragrance Shop to ensure that when a price was used as a reference they made clear what it was based on – for example, a recommended retail price. We also told them to ensure that their pricing claims did not mislead, for example by offering an “extra X% off” that was applied to the sale price, and to ensure they held sufficient evidence for their claims.