A claim on the "Delivery information" page of the website www.zavvi.com, seen in late February and early March 2013, stated "FREE UK STANDARD NEXT DAY DELIVERY when you spend over £75 - Selected products only, click through to view applicable products. Order before 2pm on the previous working day. Delivered the next working day by courier. Use code: NDD".
The complainant challenged whether the claim regarding next-day delivery was misleading and could be substantiated, because they did not receive their order the next working day.
The Hut.com Ltd, t/a Zavvi.com, confirmed that the complainant's order had been placed on 28 February 2013. They explained that the transaction had been temporarily quarantined by a third-party fraud checker and, once released on 1 March, the order had inadvertently arrived at the warehouse without the required next-day delivery designation. It had therefore not been despatched until 4 March. Zavvi.com accepted that the complainant's experience was the result of an error on their part, but said that type of issue was in the minority and a high proportion of next-day delivery items were received by the customer the next day.
Zavvi.com considered that consumers reading the claim on their website would be likely to be familiar with ordering goods online, and that as such they would know that a "next day delivery" claim did not, and could not, guarantee that all goods would arrive the next day. They noted that other major online retailers described available delivery options in a similar way, and considered that their own delivery performance was at least as good as that of their competitors. They said they were in a good position from which to assess delivery performance amongst online retailers in general, because they were aware that many of their competitors used the same courier service as they did and because they provided online fulfilment services for a number of large retailers. Zavvi.com also pointed out that their claim did not make any reference to a "guarantee" of next-day delivery. Therefore, they considered that consumers viewing the claim on their website would be likely to understand it to mean that goods would generally be delivered the next day, except in circumstances outside of Zavvi.com's, or their courier's, reasonable control (such as adverse weather or extreme traffic problems), situations caused by the customer (such as changed or cancelled orders) and extremely busy periods (such as Christmas). They stated that their delivery performance substantially exceeded that expectation.
Zavvi.com supplied two sets of data relating to the performance of their warehouse staff and their couriers in delivering items the working day after an order was placed. The first related to the period September 2012 to April 2013 and showed the monthly number and proportion of orders that had been successfully picked and packed by their warehouse staff and were awaiting collection by the courier in time to make a delivery the next day. The information in that data set was presented in two ways: all orders; and all orders excluding customer cancellations. Zavvi.com explained that all cancellations were counted by their system as a failure to despatch the next day; although in some cases the cancellation could have been for that reason, it was usually unrelated to the processing and despatch of the item.
Zavvi.com considered that the performance of their warehouse staff in preparing the orders for collection in time for the courier to make a next-day delivery was generally high. They noted that November 2012 had been a particularly challenging period for the warehouse in the run-up to Christmas, and also commented that many cancellations were received in that month. They stated that, excluding the month of November and using the data that excluded cancellations, the success rate was very high. They also said they had taken steps to improve the performance of their Operations department in February 2013. They noted that performance figures for the warehouse had improved every month in the February to April period.
The second set of data was a spreadsheet that related to the period 11 February to 14 April 2013 and showed the weekly number and proportion of orders delivered by the courier the next working day after they were collected from the warehouse. The information was broken down as "raw" performance, which included customer-controllable and courier-uncontrollable events (such as the customer not being at home to receive delivery and adverse weather and traffic problems), and "net" performance, which excluded those orders and which Zavvi.com described as the data set considered by the courier to reflect genuine errors on their part in not delivering the parcel the day after it was collected. Zavvi.com explained that they were only able to retrieve courier performance data for the period of 11 February onwards, because before that time they had been using a different courier and they were no longer able to extract historic data related to the company they had previously worked with. They said the changeover had been partly due to performance issues experienced with the other courier.
Zavvi.com considered that the only relevant point in time at which their delivery performance should be assessed by the ASA was the date of the complainant's order (28 February 2013), as well as the period following that in order to ensure that performance at the time of the order was not atypical. They said it would not be appropriate to use performance data dating from the months before the complainant's order, and particularly because there had been important changes in their operations since then which had resulted in a substantially improved delivery performance. They stated that the figures, and especially the figures for the period February to April 2013, showed a very high level of delivery performance which they believed was at least comparable with other online retailers and was consistent with the likely expectation consumers would draw from the claim to provide "next day delivery". They also commented that since receiving the complaint they had implemented processes to track orders from the point at which they were placed through to delivery and would be able to produce such data in future.
The ASA acknowledged that the claim did not contain any reference to a "guarantee" for next-day delivery. We considered that consumers viewing the "Delivery information" section of the website were likely to be familiar with ordering goods online and as such, and because of the absence of any "guarantee" associated with the claim, were likely to understand the claim "... UK STANDARD NEXT DAY DELIVERY ... Order before 2pm on the previous working day. Delivered the next working day by courier" to mean that orders placed before 2pm on a working day would be delivered the next working day except in exceptional or unforeseeable circumstances. We agreed with Zavvi.com's view that events such as decisions by the customer to change their order, nobody being at home to receive the item and extremely bad weather or severe traffic problems would generally be seen by consumers as an acceptable reason for late delivery. However, we considered that busy periods such as Christmas and the general possibility of delays due to traffic, including rush-hour traffic, should be factored into an advertiser's assessment of whether they were able to offer next-day delivery before such a claim was made.
We understood that the complainant's order, placed on 28 February 2013, had not been despatched until 4 March because of an administrative error following its release from a third-party fraud checker. We considered that, in order for the claim to offer next-day delivery to be acceptable under the Code, Zavvi.com needed to demonstrate that the complainant's experience was an exceptional occurrence and that they did consistently deliver items the next working day after the order was placed. Because the CAP Code required marketers to hold documentary evidence in support of objective claims before those claims were published, we considered that only data relating to the period up to and including the complainant's order and complaint to the ASA would constitute appropriate substantiation for the claim. Whilst we acknowledged the steps taken by Zavvi.com to improve the performance of their Operations department from February onwards, we considered that it would not be appropriate for them to make objective claims as to their delivery performance at that time if they did not already hold evidence in substantiation.
We acknowledged the data supplied by Zavvi.com in support of their claim, but were concerned that it was not sufficient to accurately establish the true number and proportion of items that were delivered to customers the next working day after the order was placed. We noted in particular that no data could be provided that showed the entire progression of orders from the point at which they were processed to the time of delivery. Any orders, therefore, that were processed by the warehouse too late for the courier to deliver the order the working day after it was placed would be listed as "late" on the warehouse spreadsheet, but could feasibly be recorded as "on time" by the courier, if the item was delivered the day after it was collected from the warehouse. We further noted that, because most cancellations stemmed from reasons unrelated to delivery performance whilst some would be due to late despatch, neither the data that excluded nor that which included cancellations on the warehouse spreadsheet fully accounted for the number and proportion of orders that were processed late by Zavvi.com's Operations department. Finally, we were concerned that Zavvi.com was only able to provide data relating to their courier's delivery performance dating from approximately two weeks before the complainant's order. We considered that that time period was insufficient to demonstrate typical performance levels and, as outlined above, that Zavvi.com needed to ensure that they held a sufficient amount of data to support the claim regarding next-day delivery at all times that it was in use.
Although we noted that the figures in the spreadsheets supplied suggested a generally high level of successful next-day deliveries, and in particular when reading the cancellation-exclusive warehouse data and the "net" performance figures for the courier, for the reasons outlined above we considered that it was not possible to draw definitive conclusions as to the number or proportion of items that were delivered the next working day after the order was placed. We concluded that the claim regarding next-day delivery had not been adequately substantiated and was therefore misleading.
The claim 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) and 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).
The claim must not appear again in its current form. We told The Hut.com Ltd to ensure they based delivery claims on sufficient evidence, such as data that tracked orders throughout the entire picking, packing and delivery process, that covered a sufficient period of time and that effectively separated exceptional or unforeseeable events preventing timely delivery from genuine errors on the part of their business or any businesses working on their behalf.