A website for a suit retailer, www.tmlewin.co.uk, included pages promoting sales promotions on men's suits and shirts. The pages stated an original price and a reduced price for each product. On the page promoting suits, some of the products listed with an original and reduced price were labelled "New".
The complainant challenged whether the savings claims were misleading and could be substantiated because they did not believe the products had ever been available at the original prices.
TM Lewin & Sons Ltd (TM Lewin) said they established the price points of their men's tailoring lines on their website every six months and that those prices were valid for a period of 28 consecutive days, after which time they were discounted. They explained that the products were available at the discounted price until they were price-established again six months later. They said the products in the ad were sold at the higher price for 28 days from 7 July to 4 August 2013.
TM Lewin said they produced a number of ranges of suits and shirts, which differed in terms of quality and therefore price. Within each range they had a number of variants that differed largely by colour. They said they price-established the ranges of their suits and shirts, and not each product individually, and that they typically price-established a minimum of 10% of each range. They stated that they viewed the range price point establishment as a proxy for all suits and shirts in that range.
TM Lewin stated that, because not all the colour variants within each price range were launched at the same time, it was not possible to say categorically that every product in the ad was available at the time of the price establishment. They said it was therefore possible that some individual suits and shirts within a range had not been available at the higher price. However, they said it was possible to state that a number of suits and shirts within the same range, and therefore of equivalent quality, were available at the time of the price establishment.
TM Lewin provided a stock-list spreadsheet of their entire range plan that showed the full and reduced prices of their products. They also provided a copy of their internal work flow management system that showed when the original prices were uploaded to the website.
The ASA noted that the spreadsheet information provided by TM Lewin showed that some of the suits and shirts advertised on the website had been available at the higher price for 28 days before being discounted. However, for many products, the spreadsheet did not show the dates during which the products were available at the higher advertised price. We noted that TM Lewin did not establish the prices of individual suits or shirts and that they could not demonstrate that all of the suits and shirts on the website had been available at the higher advertised price for that time.
We noted the industry best practice regarding price comparisons as outlined in the Pricing Practices Guide (the Guide) from the Department of Business, Innovation and Skills (BIS). The Guide was not binding on traders, the Courts or the ASA, but was to be taken into account in marketing communications, as made clear in the CAP Code. We noted that the Guide recommended that the period of time for which the discounted price was available should not be so long that the comparison became misleading and suggested that the period of time for which the discounted price was available should not be more than that for which the higher price was available. We acknowledged that this need not always be the case and that if a price comparison used in an ad differed from this advice, the basis of the comparison should be made clear, for example by clearly stating the actual dates during which the products were available at the previous price.
Although some of the products had been available at the higher price for 28 days, they had been available at the discounted price for nearly two months when the complainant saw the ad, and the dates during which the products were available at the higher price were not stated in the ad. We were concerned that TM Lewin's pricing system meant that the products would be available at the discounted price for a total of five months, which was substantially longer than the period of time they had been available at the higher price, without that being made clear in the ad.
Because TM Lewin could not demonstrate that all of the products had been available at the higher price, and because they did not state the date range for the higher advertised prices when those could have been charged for significantly less time than the discounted prices, we concluded that the ad breached the Code.
The ad 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) and 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. (Prices).
The ad must not appear again in its current form. We told TM Lewin & Sons Ltd to ensure that they held substantiation for all advertised prices, and to make clear the basis of price comparisons where the discounted price was available for longer than the higher price.