ASA Adjudication on Marks and Spencer plc
Marks and Spencer plc t/a
35 North Wharf Road
31 October 2012
Number of complaints:
A leaflet for a new Marks and Spencer ordering and delivery service was headlined "Shop your way. Our new ordering & delivery service". Further text stated "shop your way is a new service that gives you complete flexibility ..." and featured a table which showed the different ordering services available in store, online, by phone and that made to measure shirts were available to order online. Another page of the leaflet stated "shopping just got easier ... order a wide range of products, including ... made to measure shirts".
The complainant, who was not required to specify his sleeve length when ordering, challenged whether the claim "made to measure shirts" was misleading and could be substantiated.
CAP Code (Edition 12)
Marks and Spencer (M&S) explained that the made to measure service (the service) was accessible via their website and consisted of a web-based application that enabled consumers to design a shirt based on their style choices and sizing information. Each shirt was made from scratch, using a unique pattern generated by the service's patented technology.
M&S said the service was underpinned by a series of algorithms that pinpointed a person's body size by taking a few, indicative measurements and running them against a database of sizes taken from over 100,000 men to create a unique pattern for that individual. That meant consumers were only asked for limited information, which they were likely to know already, and did not require them to take their own measurements or be measured by a third party to place an order for a "made to measure" shirt.
M&S confirmed the service did not require sleeve length but they did not believe that meant the term "made to measure" was incorrect or misleading. The service calculated the appropriate sleeve length for the shirt by using the consumer's age, collar size, weight and height. The home page of the service stated what information was needed and the next page seen by consumers explained the service used biometric technology to work out the correct size and fit for their age. When consumers were asked to submit their information, that same page included the following statement "Learn more about measurements" and when consumers hovered their mouse over that, they saw the following text: "Height: Your height without shoes. Your sleeve length is automatically adjusted".
M&S said taking a sleeve measurement was extremely tricky because it involved measuring from the centre of the spine, down the arm at a particular angle and around the crook of the elbow and that it was practically impossible to do that on your own. Because of that, a consumer who did not already know their sleeve length would have to guess which may or may not have been accurate. With their service, they believed the shirt it generated was likely to be more accurate than if it relied on measurements submitted by the consumer.
M&S acknowledged, however, there would be cases where the service did not calculate an accurate sleeve length, such as for a consumer with unusually short arms. In such exceptional circumstances, they said customers would be aware they had an unusual arm length and could contact them via their website and send a message specifying their sleeve length or explaining their requirements. They said, alternatively, those customers could take advantage of the guarantee under which a new shirt would be tailored to their exact or non-standard measurements. The service retained each customer's measurements so that future or repeat orders would automatically be made to the correct fit.
M&S explained that the guarantee also allowed consumers to replace a shirt if they were dissatisfied with the sleeve or back length, for example, if they wanted it longer or shorter. In cases where the consumer was generally dissatisfied with the fit, they could provide M&S with additional measurements (sleeve, shoulder, chest, belly, waist, arm, wrist and back length) and a shirt would then be made to those measurements.
M&S said sleeve length and fit were subjective, for example, there was a convention that business shirt sleeves tended to be longer so that a small amount was seen when worn under a suit and also, whether or not a man habitually wore a watch would affect sleeve length. M&S believed the guarantee meant consumers would always get a shirt that fit them and therefore, both the service and shirts were "made to measure".
M&S said approximately 12,000 shirts were made each year using the service and their returns rate was 3.8%, of which only 0.7% was due to dissatisfaction with sleeve length of the shirt. They said the shirts were made to the exact measurements provided by consumers, and the low return rate demonstrated that the shirts fitted consumers. They therefore believed the shirts were "made to measure".
The ASA noted that the leaflet made the claim "made to measure shirts" and made clear that service was available online but gave no further explanation. We considered that consumers would interpret the claim to mean a shirt that would be cut to their own specific measurements which they would need to provide. We noted that the service required consumers to enter four measurements (age, height, weight and collar size) which men would easily have to hand and could be entered with accuracy. The algorithms then used those four measurements to create ten specific output measurements from which a shirt pattern was cut.
We understood the algorithms produced a shirt from the database of sizes that reflected the biometric information submitted by the customer and the service had a low returns rate: of 12,000 shirts approximately 84 were returned due to dissatisfaction with the length of the sleeve. We noted further that the overall returns rate (where the shirt was returned for any reason) for the service was less than 4%. We considered that those shirts that did fit could be described as made to measure.
M&S offered a guarantee as part of their made to measure service which allowed customers, whose shirts did not fit, the opportunity to submit further, more detailed measurements from which a replacement shirt would be cut. We noted further that guarantee meant that customers who were dissatisfied with their shirt still received a made to measure shirt cut from the additional measurements provided. For those reasons, we considered the shirts made by the service were made to measure and therefore concluded the claim "made to measure shirts" had been substantiated and was not misleading.
No further action necessary.