Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A website, www.ukflooringdirect.co.uk, for the flooring retailer UK Flooring Direct was, seen on 30 March 2022. A series of images of different types of flooring was accompanied by text showing “was” prices compared to “Now only” prices. Further text relating to each type of flooring made claims concerning savings, stating that consumers could save from 20% to 58% on various products.
Text at the top of the homepage stated “Up to 60% off, plus … Extra 10% off … Use code: APR-10 … Offer ends 11th April” and was accompanied by a countdown timer showing the apparent time left in the promotion.
Tapi, a floorings and carpet retailer, challenged whether the:
1. savings claims were misleading and could be substantiated; and
2. use of the countdown timer misleadingly implied that the promotion was time limited, because they understood that the extra discount offer would appear again soon after the countdown ended.
1. UK Flooring Direct Ltd said that the “was” price seen in the ad was the price at which they had previously advertised the relevant products for sale, for a period of 30 days. They confirmed that the “now” price reflected the products’ cost during the period of the sale. They provided a document which showed a calendar of rolling promotions covering a 12-month period, but which did not contain a full pricing history for the products identified in the complaint. They also told the ASA that they were in the process of making changes to their advertising, which would remove references to all “was” prices from their website by the beginning of August 2022.2. UK Flooring Direct said that they believed their promotional campaigns had clear start and end dates, and that they did not think that the countdown clock was misleading. They also said that they did not extend any promotions past the advertised closing date.
The ASA considered that consumers would understand the various savings claims highlighted in the complaint to mean that they would be able to make a genuine saving of, respectively, 20%, 49%, 50%, 57%, 58% and 58%, against the usual selling prices of the individual products at the time the ad appeared. We therefore expected to see evidence to demonstrate that the “was” prices represented the usual selling prices of the products.
We asked UK Flooring Direct to provide us with a full pricing history for each identified product, including the number of units sold at each price. However, they did not provide any pricing history, or any other evidence to demonstrate the “was” prices were genuinely the usual selling prices of the products in question.
While we welcomed UK Flooring Directs proposal to remove the “was” pricing comparisons from their website, in the absence of such evidence, we concluded that the claims had not been substantiated, and were therefore misleading.
On that point, the ad breached CAP Code 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).
We considered that consumers would understand that the countdown timer would relate to a specific time limitation in which the code offering a further 10% discount against the usual selling price was available, and that once it reached its conclusion, the offer would no longer be available. We therefore expected to see evidence that the offer had ended once the timer reached zero, and that the extra 10% (or similar) discount was not offered on such a consistent basis that it undermined the claimed saving.
While UK Flooring Direct told us that their promotional campaigns had clear start and end dates which were not extended, and did not believe their use of the countdown timer to be misleading, they did not provide us with any further evidence to show that this was the case. In the absence of any such evidence, we concluded that the use of the timer was misleading.
On that point, the ad breached CAP Code 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 8.17.4.e 8.17.4.e Closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter make it necessary and either not to change the date would be unfair to those who sought to participate within the original terms, or those who sought to participate within the original terms will not be disadvantaged by the change. (Promotional marketing).
The ad must not appear again in its current form. We told UK Flooring Direct Ltd to ensure that future savings claims did not mislead and to ensure they substantiated savings against the usual selling prices of their products. We also told them not to portray promotional offers as being time limited if that was not the case.