A radio ad for Carphone Warehouse, heard in July 2017, stated “Arabella splurges her £152 on a luxury pampering session for her chihuahua, Mr Fluffles. Switch with Carphone Warehouse and save, on average, £152. Visit us in store or online. Saving compared with major networks over 24 months. Promotion incentives excluded”.
The complainant challenged whether the claim “saving compared with major networks over 24 months” was misleading because he understood that the comparison did not include Three.
The Carphone Warehouse Ltd stated that the comparison was against Vodafone, O2 and EE, and did not include deals available from Three. Their ads in other media referred to the three networks by name, but this was not possible in the radio ad because it was only 20 seconds long. They believed that clause two of BCAP Code rule 3.2 was relevant because the ad was constrained by time. More detailed information, including the names of the networks included in the comparison, was available online and in store, and consumers were directed to these in the ad.
Carphone Warehouse said they appreciated that the word “major” was not a precise term when defining a competitor set, but they believed that Three’s market share was significantly smaller than that of Vodafone, O2 and EE. They provided the results of an independent consumer survey that they said supported their claim. They believed that it was not materially misleading to use the term “major networks” when referring to a competitor set that did not include Three. In any case, they said they were not aware of any consequence that could arise from such a misunderstanding - for instance, there was no suggestion that there were any specific Three deals that would have undermined the advertised savings claim should they have formed part of the comparison.
Radiocentre had nothing to add to the advertiser’s response.
The ASA noted that the mobile services market was divided broadly into mobile network operators (MNO), which controlled the complete infrastructure needed to provide their services, and mobile virtual network operators (MVNO), which relied on the infrastructure of MNOs to deliver their services. The four UK MNOs were EE (part of BT), O2, Vodafone and Three. We considered that consumers would understand these to constitute the “major” providers in the market.
We noted that the consumer data provided by Carphone Warehouse indicated that, out of the four MNOs, Three had the smallest relative proportion of market share in terms of both post-paid new subscriptions and post-paid upgrades. However, we noted that there was no information in the ad to indicate that this was the basis that Carphone Warehouse had used to define a “major network”. We therefore considered that consumers would understand the claim “saving compared with major networks over 24 months” to mean that the savings claim was based on a comparison with the average savings across all four UK MNOs, including Three. As the comparison did not include Three, we concluded that the ad was misleading and breached the Code.
The ad breached BCAP Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. 3.2 3.2 Obvious exaggerations ("puffery") and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead. (Misleading advertising), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (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 the form complained about. We told Carphone Warehouse Ltd to ensure they made the basis of comparative claims clear to avoid giving a misleading impression to consumers.