An email from sports supplements retailer MyProtein, dated 25 April 2017, featured a text box which stated "APRIL SALE UP TO 60% OFF PLUS EXTRA 10% OFF" and included a “SHOP NOW” button. Another text box was positioned below which stated "HIGH PROTEIN SNACKS". Text in smaller font below the “HIGH PROTEIN SNACKS” text box stated " ... Offer valid until midnight on 23.04.17 or whilst promo stocks last. Sale items are already discounted - no code is required. However, code EXTRA10 can be used for an additional 10% discount ...". A number of links to the MyProtein website and social email pages, and company information, were featured below that text.
The complainant, who was unable to find any items on the website that were discounted by 60%, challenged whether the claim “April sale up to 60% off” was misleading and could be substantiated.
The Hut.com Ltd t/a MyProtein stated that when the promotional email was sent on 25 April 2017, the MyProtein website had 1,796 unique items and 145 of those items were subject to a 60% discount or higher, meaning that over 8% of the items were available for purchase at a discount of 60% or higher during the April sale. They provided a spreadsheet detailing each of those 1,796 items, the pre-sale prices, the prices at which those items were offered during the sale and the amount of discount applied. They believed that given the circumstances, the fact that 8% of the total number of items was discounted at 60% or more constituted a significant proportion, given the number of unique items available for purchase during the April sale. To assist their customers, the ‘Sale’ section of the MyProtein website could be filtered to show which products were discounted and by how much.
The ASA considered that consumers were likely to understand from the claim “UP TO 60% OFF” that all of the products available for purchase on the MyProtein website would have some level of discount, and that a significant proportion of those items would be discounted at 60%. We considered they would expect the claim to represent the true overall picture of the sale. In other words, that products which were discounted, including those discounted by 60%, would be distributed across all price ranges.
We noted that the spreadsheet provided by MyProtein indicated that 145 out of the 1,796 items that they sold (8% of all the items available) were discounted at 60% or more during the April sale, and that all of the other products had some level of saving. The pre-sale prices of all of the items ranged between £0.99 and £149.99: 1,678 items were priced between £0.99 and £49.99 prior to the sale, and 7.93% of those were discounted by 60% or more; 112 items were priced between £50 and £99.99 prior to the sale, and 10.71% of those were discounted by 60% or more; only six items were priced between £100 and £149.99 prior to the sale, and none of the items in that range were discounted by 60% or more.
Although we did not consider that the overall distribution of products discounted at 60% or more fell disproportionately in any particular price ranges, we did not consider 8% of the total number of products available during the April sale constituted a significant proportion of the sale items. Because we considered consumers were likely to expect that a significant proportion of items would be discounted at the claimed maximum discount, and that was not the case, we concluded that the claim “UP TO 60% OFF” had not been substantiated and was likely to be misleading.
The ad was in breach of CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading), 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 ad should not appear again in the form complained of. We told MyProtein to ensure that they did not make “up to X% off” claims in future, unless they held adequate documentary evidence to demonstrate a significant proportion of sale items were discounted by at least the stated maximum percentage.