A magazine ad, published in the Radio Times (24–30 September edition), featured a sales promotion for a DAB radio and ipod dock; text stated "... IWantOneOfThose.com is offering RT readers a further £5 off on the stylish and compact Bush DAB radio with iPod dock ... This offer is available until 19 October 2011 ... ".
The complainant challenged whether the advertisers had made a reasonable estimate of the likely response to the promotion and were capable of meeting that response, because having attempted to redeem the offer on 26 September, he was informed that no stock was available.
IWantOneOfThose.com (IWOOT), replying on behalf of BBC Magazines, said in the period between 1 January 2011 and 31 August 2011, the advertised product was available for purchase on their website at a price of £39.99 and that during that period they made no sales. They also said in the period between 1 January 2011 and 25 October 2011, a similar product was available for purchase at a price of £49.99 and that they made four sales in that period.
IWOOT said they also considered two previous sales promotions when estimating demand for the advertised product. The first promotion appeared in the Doctor Who special edition of the Radio Times and offered readers a 15% discount on all Doctor Who merchandise. The promotion resulted in 16 redemptions. The second promotion also appeared in the Radio Times and offered readers 10% discount on all products available from the iwantoneofthose.com website. The promotion resulted in no redemptions
IWOOT therefore believed the ad would not generate demand in excess of 14 units, which they held at the time the ad appeared. They said for that reason, the ad did not state that stock was limited.
IWOOT said that upon realising they were unable to meet demand they contacted a range of suppliers in an attempt to source additional units of the advertised product. However, they said they were informed that the product had been discontinued and that additional stock was not available. They said they sought to ascertain whether they could obtain a suitable alternative product. However, due to the short time frame and limited range of available and similar substitute products, they were unable to reach agreement with the Radio Times as to a suitable replacement.
IWOOT said complaints in respect of the ad were handled by the Radio Times and that they were informed of the initial complaint only.
BBC Magazines explained that radio offers within the Radio Times would usually receive in excess of one hundred redemptions. They said IWOOT had sole responsibility for the promotion and assured them that they would have sufficient stock to satisfy demand. They also said they were not able to provide a figure for the number of consumers that attempted to redeem the offer, but said they were alerted to the problem by two phone calls to the Radio Times' customer service team. They said upon realising that consumers were experiencing problems redeeming the promotion, they contacted IWOOT to resolve the issue, but to no avail.
The ASA noted IWOOT's comments that they had based the stock level for the advertised promotion on their low sales figures for the product and previous promotions, which they considered similar.
We acknowledged that the advertised product had achieved low sales figures via the website. However, we noted that the ad was a sales promotion which appeared in the Radio Times. We were therefore concerned that the low sales figures for the product via the website did not provide a reasonable estimate of the likely response to the advertised sales promotion.
We noted the first sales promotion considered similar by IWOOT appeared in the Doctor Who special edition of the Radio Times and offered a 15% discount on Doctor Who merchandise. We were therefore concerned that that promotion related to products and a target market which were not sufficiently similar to the current promotion to provide a reasonable basis for estimating demand for the current promotion.
We noted the second promotion considered similar by IWOOT offered a 10% discount on all merchandise. However, we noted the offer appeared in a list of several alternative retailers and did not provide details of the specific items which were available. We were therefore concerned that that promotion was not sufficiently similar to provide a reasonable basis for estimating demand for the current promotion.
Because we considered the low sales figures and previous promotions were not sufficiently similar to the current promotion to provide a reasonable basis for estimating demand for the current promotion, we concluded that the promotion breached the Code.
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), 3.27 3.27 Marketers must make a reasonable estimate of demand for advertised products. and 3.28.1 3.28.1 if estimated demand exceeds supply, marketing communications must make clear that stock is limited (Availability), 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales promotions) and 8.9 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. and 8.12 8.12 Promoters must not encourage the consumer to make a purchase or series of purchases as a precondition to applying for promotional items if the number of those items is limited, unless the limitation is made sufficiently clear at each stage for the consumer accurately to assess whether participation is worthwhile.
The ad must not appear again in its current form. We told IWOOT to ensure that they made a reasonable estimate of the likely response to promotions in future.