1. ASDA Stores Ltd (Asda) said that the comparison of branded products was undertaken by an independent price checker, Skuudle. They provided a copy of the comparison data taken on 20 October 2011. They said a copy of the data had been provided to Clearcast prior to broadcast of the ad, as well as details of Skuudle's brand comparison process which they said took account of the Code, previous ASA adjudications and the CAP Help Note on Retailers' Price Comparisons. Asda also provided details of the terms and conditions which appeared on their website and were referenced in the ad. Asda said the basis of comparison was clearly set out in their advertising and was supported by robust substantiation from an independent price checker.
Clearcast said they considered Skuudle's price checking mechanism and were content that it was in line with the relevant CAP Help Note. They said that, for example, the mechanism compared for exact matches and did not compare products that were out of stock in either store. They added that the ad did not exaggerate the time that prices had been lower, because it stated the date on which the comparison had been made. Clearcast confirmed they had received an exact match report from Skuudle, which listed all the branded products at Asda and Argos, with details of pricing at both stores. They said they were satisfied that the numbers used in the ad were correct and that the phrasing of "Last Thursday, an independent price checker confirmed that ASDA had this many branded products cheaper than Argos", together with the numbers of products, was a fair description of the comparison.
2. Asda said the voice-over made clear that the comparison comprised only branded goods, of which some were electronic products. They said the data they had provided showed that products from all the electronic brands referenced in the ad were included in the comparison. They considered the claim was not, therefore, misleading.
Clearcast said that, because they were satisfied with the fairness of the comparison, and were satisfied that there were a sufficient number of products cheaper at Asda, they did not feel there was a need to include the numbers on-screen, which would result in a more complex ad. They said that, if consumers wanted to seek verification of the numbers, they could do so by checking at the web address which appeared on-screen.
3. Asda said the ad made clear on what date the comparison was conducted, and was broadcast five days after that date. They said their decision to use a TV ad, which was short-term media, was in accordance with the advice set out in the CAP Help Note.
Clearcast said they allowed Asda to broadcast ads which included price comparisons that might change as long as the ads included the date of the comparison and were not on air for longer than a few days. They said that Asda supplied them with substantiation which showed that the number of products cheaper at both stores did not change throughout the date on which the price comparison was made. They said the voice-over also made clear to consumers the date on which the comparison was made.
The ASA understood Argos had also collated price data on 20 October 2011, which they believed showed that the two stores offered 1191 identical branded products, of which Asda was cheaper on 846 and Argos cheaper on 336. We understood from the sets of data from Argos and Skuudle, and from the Skuudle process document, that there were significant differences in the way they had made their comparisons, which could at least in part account for the differences in results. Those differences appeared to include, but were not necessarily limited to: that Argos collated the data around five hours before Skuudle and the prices of some products may have been updated in the intervening hours; that Argos appeared to have compared some products which were out of stock or discontinued in one or the other retailer, whereas Skuudle only compared products which were available for purchase at the time of the comparison; that Skuudle did not compare products in instances where Argos included delivery, installation or recycling in the price of the product, whereas it appeared that Argos did make the comparison in those instances; that for most product categories Skuudle made comparisons where the products were identical except for colour but for two product categories only compared the products if they were identical including colour, whereas it was unclear what Argos' approach had been with regard to product colour; that in some instances Argos assigned catalogue numbers to a range of products (for example, toys) and because Skuudle could not be sure that all products in that range were in stock or comparable by colour, they were not compared, whereas it was unclear what Argos' approach had been in those instances; and that Argos had, in at least a few instances, compared products which were not the same.
Because it was clear that there were differences in the ways in which Argos and Skuudle had made their comparisons, but it was not possible to determine what combination of factors caused the disparity in results, we concluded that our assessment of the ad must be based on whether the claims in the ad, the approach taken in collating and comparing the data on which the claims were based and the way that approach was communicated to consumers was fair and not misleading rather than on whether one or the other sets of data was 'correct'.
We considered that consumers would understand a general price comparison between branded products sold by two retailers, such as the comparison in the ad, to include all branded products available at both retailers at the time the price data was collated, unless qualifications about the extent of the comparison were included in the ad. We noted the ad included on-screen text which stated "Selected lines. Subject to availability. Exclusions apply", which we considered indicated to consumers that some products had not been included in the comparison. We also noted the ad included on-screen text which directed consumers to where they could find more information. However, we were concerned that not all significant conditions to the comparison had been included in the TV ad, and further, that the terms and conditions on Asda's website did not include full details of the limitations to and exclusions from the comparison.
For example, we understood that the comparison was made only between products on sale in the retailers' online stores, which we considered was material information about the way in which the comparison had been made. However, we noted that was not stated in the ad, and also noted that the final shot showed a woman in an Asda store. We considered it was therefore likely that consumers would understand that the comparison had been made between products which were available in-store and/or online from the two retailers. Whilst we noted the terms and conditions on Asda's website made clear that the comparison was only between products sold online, we concluded that qualification was material information that should also have been included in the TV ad.
We also understood, from the terms and conditions on Asda's website, that where products sold by both retailers were identical except for colour, a price comparison would still be made. We noted Skuudle's process document confirmed they had taken that approach except, however, for product types which fell into the categories of large appliances or toys. We noted that the terms and conditions on the website omitted that information and consumers had not, therefore, been made aware of that qualification to the comparison, which we considered to be a breach of the Code. Notwithstanding that, we understood from Asda that the rationale for treating large appliances and toys differently from other products was that retailers sold some colour variants of products in those categories at a premium price (for example silver washing machines were generally more expensive than the same model in white), and they considered that if those product categories had been treated in the same way as other product categories consumers could have been disadvantaged or misled. We noted Asda's reasoning but considered it was likely that some products in other product categories would also have a premium applied to certain colour variations, and it was therefore possible that in some instances products of one colour at one retailer might have been compared with the same product which had a premium applied to it because of its colour in the other retailer. We concluded the approach taken in making the comparisons was therefore unfair and misleading in that regard.
We understood that, in instances where free delivery was included with the product at one retailer but a delivery charge was added at the other, the products were excluded from the comparison. We understood that was because, although the product remained the same, the total service offering was different and Skuudle therefore viewed it as an unfair comparison. We considered that approach was fair but also considered that the exclusion was a significant qualification to the comparison which should have been made clear to consumers, because if they had been making the comparison themselves they would have been concerned with the total cost of the purchase, including delivery, and the offer of free delivery at one retailer compared to the addition of a delivery charge at another would have been a factor in their decision as to which retailer they would make the purchase from. We noted the terms and conditions on Asda's website stated that delivery charges might apply to products, and that "Exclusions apply to free delivery - see product page for details", but we considered that wording did not make clear that products would be excluded from the comparison if free delivery was offered at one retailer but not the other. We concluded that, because the exclusion had not been made clear to consumers either in the ad or the terms and conditions on the website, the ad breached the Code.
Similarly, we understood that both retailers had various installation, delivery and recycle options for large appliances, but in some instances Argos added those to the price of the product so they could be purchased as a package, whereas Asda always required customers to choose and pay for those options in addition to the product price. We understood that, where Skuudle identified those package options at Argos, the product would be excluded from the comparison, again because the total service offering was different in the two retailers. We considered that approach was fair, but for the same reason as noted above in relation to delivery charges, we considered the exclusion from the comparison should have been made clear to consumers. Because it was not made clear in either the TV ad or the terms and conditions on Asda's website, we concluded the ad breached the Code.
We noted from the Skuudle process document that within the toys category, one retailer might assign one product/catalogue number to a full range whilst the other might assign an individual number to each item in that range, or both retailers might assign only one part number to the full range; and in those instances a comparison would not be made. We understood that was because it could not be known whether the relevant variants of the product were available, or whether an exact comparison could be made. We considered that approach was fair but again considered that the exclusion was a significant condition to the comparison which should have been made clear to consumers. Because it was not made clear in either the TV ad or the terms and conditions on Asda's website, we concluded the ad breached the Code.
Because significant limitations and qualifications to the basis of the price comparison were not included in the ad, or in the terms and conditions on Asda's website, we concluded the ad breached the Code.
On this point, the ad breached BCAP Code rules 3.1, 3.2 (Misleading advertising), 3.9 (Substantiation), 3.10 (Qualification), 3.12 (Exaggeration), 3.33 (Comparisons with Identifiable Competitors) and 3.39 (Price Comparisons).
We understood Argos' challenge to the claim had two parts: firstly, that the comparison was unfair and misleading because it did not include information about the number of products compared or how many were cheaper at Asda; and secondly, that the ad implied Asda was cheaper on more electronic products from the referenced brands than Argos, when Argos believed that was not the case. We understood Asda considered the ad implied only that some products from the electronic brands referenced in the ad were cheaper at Asda.
We considered, however, that consumers would not interpret the ad to be a general claim that Asda was cheaper on more branded electronic products than Argos, or that they would understand it to be stating only that some products from the brands were cheaper at Asda than at Argos. Rather, we considered that consumers would understand the claim "Last Thursday, an independent price checker confirmed that Asda had this many branded products cheaper than Argos ... Including all these great electronic brands", accompanied by the cartoon box tagged "ASDA 551 Cheaper" unwrapping to reveal the logos of nine brands, to mean specifically that Asda was cheaper than Argos on all products of the electronic brands featured. We considered that in that context, it was not unfair or misleading that the ad did not include specific information as to how many products were included in the comparison or how many were cheaper in Asda, because consumers would interpret the claim to mean that all products of those brands were cheaper in Asda. We considered that Asda must therefore hold substantiation that they were cheaper than Argos on all products of the featured electronic brands.
We reviewed Skuudle's price comparison data to determine whether all products of the nine featured brands were cheaper in Asda than in Argos on 20 October 2011. We noted that 65 products were attributed to the brands, and that Asda was cheaper for all products from three of those brands. However, we also noted that Argos was cheaper than Asda on some products from the other six brands. Because Asda was not cheaper on all products from the featured brands on 20 October 2011, we concluded the claim had not been substantiated and was misleading.
On this point, the ad breached BCAP Code rules 3.1 (Misleading advertising), 3.9 (Substantiation), 3.12 (Exaggeration), and 3.33 (Comparisons with Identifiable Competitors).
3. Not upheld
We understood from Argos that their pricing information was updated approximately every 24 hours, and it was therefore likely that at least some of the prices of the products compared by Skuudle would have changed by the time the ad was broadcast. We noted, however, that the ad made clear the date on which the price comparison had been made, and that Clearcast ensured such ads were not broadcast for more than a few days. We also noted that it was a general comparison, rather than one relating to specific products, and that the ad made clear that some branded products were cheaper in Argos. We concluded the ad was not unfair or misleading.
On this point, we investigated the ad under BCAP Codes 3.1, 3.2 (Misleading advertising), 3.9 (Substantiation), 3.10 (Qualification), 3.12 (Exaggeration), 3.33 (Comparisons with Identifiable Competitors) and 3.39 (Price Comparisons), but did not find it in breach.