Background

Summary of Council decision:

Two issues were investigated, both of which were Upheld.

Ad description

A TV ad and press ad, for Aldi's "Swap and Save" challenge:

a. The TV ad featured four shoppers discussing their experience of swapping from their usual supermarket to Aldi, including "We've saved so much on our weekly shop" and "What surprised me more than what I saved financially ...". On-screen text displayed throughout the ad stated "84 out of 98 people saved. Challenge completed between 16/09/13 - 01/12/13. Prices independently revalidated 13/04/14. Challenge based on four weeks grocery shopping at usual supermarket & then four weeks at Aldi. Non grocery items, items where a specific comparison wasn't available & high ticket items which don't form part of a typical weekly shop were excluded. Details at aldi.co.uk/tv". Large on-screen text which stated "Could you Swap and Save?" and the website address aldi.co.uk were shown at the end of the ad.

b. The press ad, headed "Aldi. How much could you Swap & Save?", featured images of the same four shoppers and statements they had made about their experience of swapping from their usual supermarket to Aldi, including the two statements featured in ad (a). Underneath the images, text stated "Why not try the Swap&Save Challenge today?". Small print included "… Prices correct at time of going to print … All respondents were independently recruited to participate in the 'Aldi Swap & Save Challenge', 84 out of 98 people saved. Challenge completed between 16/09/13-01/12/13. Prices revalidated 14/04/14. Challenge based on four weeks' grocery shopping at usual supermarket and then four weeks at Aldi. Non-grocery items and high ticket items which don't form part of a typical weekly shop were excluded. For full substantiation see aldi.co.uk".

Issue

Tesco Stores Ltd challenged whether:

1. the comparison was misleading and complied with the Code, because they believed the eight-week comparison period was out of date and invalid for a price sensitive market (and the later revalidation of the prices was not sufficient to address that), the weekly shops were not compared on a like-for-like basis, the selection of items to include or exclude was arbitrary and the explanatory information in the ads was not sufficiently prominent; and

2. the comparison was verifiable, because they believed the relevant verification information was flawed.

Response

1. & 2. Aldi Stores Ltd said the Swap & Save campaign was different from more traditional comparative advertising in which the prices of individual products, or the overall price of a standardised basket of goods, was compared. Instead, the campaign was intended to reflect the actual overall shopping costs of certain consumers who purchased their weekly shop from the same store over an extended period of time. They said that to compare individual products would therefore have been artificial, because consumers did not in practice purchase the same products every week. The campaign fully compared the actual overall weekly shop of individuals over a lengthy period and they believed it was fair, transparent and verifiable. They considered that because the overall cost of a shop was being measured, rather than it being a comparison of individual products, issues such as pack sizes were irrelevant. Aldi said the ad did not state that consumers would obtain the exact same savings based on individual product price comparisons, but rather invited consumers to try shopping in Aldi to see whether they could benefit from the same overall savings that the individuals identified in the campaign had achieved.

Clearcast, responding in relation to the TV ad only, said they agreed with Aldi that the Swap & Save campaign was fundamentally different to traditional comparative advertising campaigns by supermarkets. In their view it was clear from the name of the campaign that the aim was to get viewers to swap their existing choice of products to other products which met their needs, but were sold at a much cheaper price. This would entail the use of different products which would likely be packaged in different sizes and quantities, so it would not be possible to compare them on a like-for-like basis.

Aldi said they believed the eight-week comparison period worked precisely because it avoided the difficulties caused by short-term fluctuations in peoples' personal spending patterns, helping to 'smooth out' those changes, but it inevitably took a period of time to collate the relevant verification material. They said that was particularly relevant in the context of this type of campaign because it was based on user-generated content and, for all types of personal and family reasons, individual shoppers would undertake different shopping on a week-by-week basis. Aldi said they did not accept that data from November and December 2013 was invalid for an advertising campaign undertaken in April 2014. Furthermore, they had agreed with Clearcast to carry out a 'revalidation' exercise, checked by an independent third-party auditor, on 13 April 2014, to ensure the data remained accurate and relevant.

Aldi said the revalidation exercise and Nielson data indicated that recent price inflation in groceries had been comparatively low, between 0.7% and 2.3%. Aldi pointed out that the revalidation process was precisely aimed to deal with the fact that prices might change, and therefore prevented inaccurate comparisons from being made. Additionally, they said that running the challenge over eight weeks took into account their competitors' practice of 'high-low' promotional pricing.

Clearcast said the ASA had considered the issue of whether price data was out of date in a ruling on ads from the first iteration of the Swap & Save campaign, and had concluded those ads were in breach of the Code because they had not seen evidence that Aldi's competitors' prices had not changed significantly between the dates on which the shops were conducted and the dates when the ads were published. Clearcast had therefore worked closely with Aldi so they could agree a workable approach for future campaigns. Clearcast said Aldi had suggested revalidating the data to show that the prices for competitors had not changed significantly; they had considered that was acceptable and were content that the revalidated data showed that was the case.

Clearcast highlighted that in the revalidation exercise, the total costs of the shops had been cheaper for two of the individuals featured in the ad and more expensive for the other two, and that the savings of three of the four individuals had actually increased. They said that in any event they did not agree that any price fluctuations would render the data period out of date. They said the aim of the campaign was to persuade shoppers to swap to Aldi to see if they could make savings, and they were content that the four individuals who undertook the eight- week challenge did save money and the data provided by Aldi supported that. Clearcast said they were satisfied that Aldi had done everything possible to make the campaign as fair and transparent as possible and that they did not have an unrepresentative advantage over any of their competitors.

Aldi said the inclusion and exclusion of items in the comparison was based on a logical interpretation of what would be part of a typical weekly shop. Tesco had referred to the inclusion of items such as nappies and razor blades, but the exclusion of dishwasher salt and Ruby Port, which they considered to be inconsistent. Aldi explained that they considered nappies and razor blades would be regular purchases for users of such items, whereas Ruby Port was not generally purchased outside of the Christmas season and dishwasher salt was refilled monthly and only in hard water areas. They said that seasonal items had been excluded from the comparison, and clarified that routine alcohol purchases such as wine and beer were included in the comparison. They said the exclusions and inclusions did not create an artificial advantage for Aldi. They added that both ads included small print which stated "high ticket items which don't form part of a weekly shop were excluded", which made clear to consumers the process they had used.

Clearcast acknowledged that the use of "high ticket" items had the potential to give Aldi an unrepresentative advantage if it was not made clear to viewers that those items were excluded. They had therefore ensured that small print stating "Non grocery items, items where a specific comparison wasn't available & high ticket items which don't form part of a typical weekly shop were excluded" was included in the ad. They endorsed Aldi's explanation in relation to the specific inclusions and exclusions highlighted by Tesco.

Tesco had highlighted that the cost of one of the individuals' shops had been stated incorrectly in the verification information, and that verification information relating to one of the individuals featured in the campaign was not available online. Aldi said the first issue was an isolated arithmetical error which did not affect the overall validity of their claims. In relation to the second issue, one of the individuals had requested that his detailed receipts not be released, and so that information had not been made available online, although it was available on request. Aldi said they must respect the individual's rights in relation to matters of confidentiality and data protection. Clearcast noted that Aldi had no alternative but to remove the individual's data from their website. They were satisfied that that data was available on request.

Tesco had noted that information in the ads stated that 84 out of 98 people saved, and that the challenge was based on four weeks’ shopping at a competitor and then four weeks shopping at Aldi. They understood, however, that only four of the 98 individuals had undertaken the eight-week challenge, and the remaining 94 had undertaken the challenge over two weeks. They noted that the verification information on Aldi's website included two spreadsheets: one which showed the costs of the shops of the four individuals during the eight week challenge ("Spreadsheet 4"); and another which listed all 98 shoppers and showed the costs of their shops over two weeks ("Spreadsheet 98"). When adding the four individuals who had undertaken the eight-week comparison period into Spreadsheet 98, Aldi had taken the first week during which they had shopped at a competitor as week 1 of the two-week comparison, and the first week during which they had shopped at Aldi as week 2 of the two-week comparison. However, Tesco highlighted that the costs of the shops of the four individuals in Spreadsheet 4 did not tally with the costs stated for those individuals in Spreadsheet 98. They believed it was not clear to consumers that only four individuals had undertaken the eight-week challenge and the rest had undertaken a two-week challenge.

Aldi confirmed the comparison was based both on data relating to the four individuals featured in the ads, shopping over an eight-week period, and on data from a further 94 individuals shopping over a two-week period. The additional two-week comparison period had been added because Clearcast had required that they provide additional data over and above that obtained during the eight-week period. Aldi highlighted that both spreadsheets were available on their website, and shopping receipts for the 98 shoppers were available on request. Aldi considered the reason for the use of the two-week period was clear within footnotes and a summary document ("the Summary") which accompanied the material on their website.

Spreadsheet 4 listed the cost of each weekly shop during the eight-week comparison period, showing the costs of both the original shop and the revalidation shop. The stated costs of the original shops excluded the cost of items which had not been available at the time of the revalidation. Spreadsheet 98 listed only the cost of the original shops, and included the cost of items which had not been available at the time of the revalidation. Aldi said Clearcast had told them to include only the cost of the original shops, without excluding the cost of items not available in the revalidation, in Spreadsheet 98 in order to avoid confusion for consumers. That was the reason why the shopping costs for the four individuals who had undertaken the eight-week challenge did not tally between the two spreadsheets.

Clearcast said they had advised Aldi that in order to be sure that the savings from the eight-week challenge were representative of savings that could be attained by consumers generally and which did not give Aldi an unfair advantage, they should undertake an additional level of testing. Aldi had consequently provided data relating to a further 94 shoppers who had undertaken the same challenge but over two weeks instead of eight. Clearcast felt that this data demonstrated the savings made in the eight-week challenge were realistic and representative.

Clearcast considered the reference to the two-week comparison period was clear on Aldi's website, and that consumers were therefore unlikely to be misled. However, they said that on reflection the claim "84 out of 98 people saved" in on-screen text in ad (a) could be interpreted as relating to the eight-week challenge. They said that although Aldi worked with them and fully complied with the script and film approval process, the on-screen text could have been expanded to clarify the additional two-week data period.

Finally, Tesco believed that because the type of comparison made was new and unique, rather than being a traditional 'like-for-like' comparison, it was not sufficient to include explanatory information about the comparison in small print. Aldi responded that because this was the second iteration of the Swap & Save campaign, the nature of the campaign was now well-known to both competitors and consumers and was therefore no longer new and unique. Aldi said they had incorporated explanatory information into the ads about how the comparison was made, following an ASA ruling on ads in the first iteration of the campaign. In relation to the TV ad, they said they had worked closely with Clearcast to create small print which they felt addressed the concerns highlighted by the ASA in their ruling. They said the explanatory text was on-screen for an adequate period of time, in line with legal timings, and said there was a practical limit to the number of words which could appear legibly on-screen.

Clearcast believed the information in the on-screen text and its duration were sufficiently prominent for viewers.

Assessment

1. Upheld

The ASA understood that the 'Swap & Save' comparison involved four individuals carrying out their weekly shops at their usual supermarkets for four weeks, then swapping to Aldi for the following four weeks, between mid-September and mid-November 2013. Aldi had then compared the total amount spent by each individual over the four weeks at the competitor supermarket with the total amount they had spent at Aldi over four weeks. We noted that the four participants in the eight-week challenge had been told to shop as normal, and were not required to include or exclude any specific items or to ensure they purchased the same items every week. We considered the approach was therefore likely to reflect those individuals' general shopping habits and their typical shopping costs over time. We considered it acceptable to make an overall price comparison on that basis.

To further support those findings, another comparison had been made in the last two weeks of November 2013 with 94 individuals shopping at their usual supermarket for a week, and then shopping at Aldi for a week; 81 of those individuals had saved at Aldi. The shops of the four individuals featured in the ads, and those of the additional 94 individuals, were then carried out again shortly before ads (a) and (b) were published to 'revalidate' the savings. The revalidation exercise took place in the same month as the ads had appeared and had reproduced the original shops by checking the prices of the items purchased at both Aldi and the relevant competitor. Items had been excluded from the original shops if they were not available at the time of the revalidation shop. We noted that only a small number of items had been excluded from the comparison on that basis and considered it had not given Aldi an unrepresentative advantage. We also considered the revalidation exercise was an appropriate way of ensuring the comparison was valid when the ads appeared.

We considered the ads should include such information about the comparison to enable consumers to understand the basis on which it had been made and therefore not be misled. We acknowledged that the overall presentation of the ads made clear that the four individuals featured had swapped from their usual supermarkets to Aldi and had saved money, but considered that was not enough to explain fully the way in which the comparison had been made. We noted that further information was included in small text, which in both ads stated "84 out of 98 people saved. Challenge completed between 16/09/2013 - 01/12/13 … Challenge based on four weeks grocery shopping at usual supermarket & then four weeks at Aldi". We considered consumers would therefore understand that 98 people had participated in the eight-week challenge, when in fact only four people had.

Moreover, we understood the text "items where a specific comparison wasn't available … were excluded" in both ads was intended to explain to consumers the exclusion of items from the original shops which weren't available at the time of the revalidation shop, but we considered the wording chosen did not adequately convey that meaning and it was therefore unlikely that consumers would interpret the explanation as intended. Notwithstanding that we considered the ads had not fully explained the basis of the comparisons. In the context of the claims made by the individuals featured, and the references to "Swap & Save", we considered that the explanatory information in on-screen text in ad (a) and small print in ad (b) was sufficiently prominent and legible.

The information presented in both ads in relation to the exclusions stated "Non grocery items … & high ticket items which don't form part of a typical weekly shop were excluded. Details at aldi.co.uk/tv". We considered consumers would have a general understanding of the types of items referred to as "non grocery items" and "high ticket items which don't form part of a typical weekly shop" and noted that they could find further details by reviewing the verification information on Aldi's website. We considered it was reasonable to exclude items from the comparison which did not form part of a typical supermarket shop, but considered that one of the benefits to the two four-week comparison periods was that they would encompass items which the individuals were likely to purchase regularly though not weekly. For that reason we considered that items such as dishwasher salt should have been included in the comparison.

We noted there were inconsistencies in how the inclusions or exclusions had been applied in some instances. For example, in three instances an item had been excluded from one person's shop because it was considered to be a non-grocery or high ticket item (dishwasher salt, truffles and Christmas pudding) but had been included in another shop. Some items had been included in the comparison which we considered were non-grocery items, such as laminating pouches and an item described as "money wallets/gift pouches". Toiletries were generally included in the comparison, but deodorant had been excluded from one shop. Kitchen items such as clingfilm and oven bags had been included in the comparison, but egg poaching bags had not. Whilst Aldi had said that Ruby Port had been excluded because it was a seasonal item, we noted that it had actually been included in the comparison along with a variety of other foods and drinks which would generally be considered seasonal: gluhwein, ginger mulled wine, cream sherry, mincemeat. Finally, whilst we considered nappies to be a typical weekly shop item for families with young children and would therefore expect them to have been included in the comparison, we noted that the only individual who had purchased nappies during the comparison period had purchased them in three out of four shops at the competitor supermarket but had not purchased nappies at all in Aldi. In those circumstances we considered the nappies should have been excluded from the price of the competitor shops.

The verification information made available on Aldi's website included the Summary, Spreadsheets 4 and 98, and itemisation tables and copies of receipts relating to the original shops of three of the individuals who had undertaken the eight-week challenge. We noted the error Tesco had highlighted in the cost of one of the individuals' shops and further noted that was not an isolated arithmetical error. On reviewing the verification information we noted there were a range of errors in the data, including but not limited to: errors in the transcription of prices from the receipts onto the itemisation tables (for example, stating the wrong prices for items, the duplication of items and the omission of items); inconsistencies in how the price of loose vegetables were calculated when comparing the prices of the original and revalidation shops; the removal of items from the original shops because they were not available at the time of revalidation when in fact the item had been purchased in the revalidation shop; and items not being removed from the total cost of the original shop when they were not available in the revalidation shop.

The information on Aldi's website stated that the savings attained in the original shops ranged between 19% and 37%, and that the savings attained at the time of the revalidation shop ranged between 20% and 37%. We were concerned about the number and range of errors and inconsistencies in the substantiation. However, based on our own calculations, which took into account our considerations of which items should have been included and excluded, and allowing for the inconsistencies and inaccuracies in Aldi's data interpretation, the savings attained in the original shops ranged between 22% and 33%. In the revalidation it ranged between 25% and 38%. We considered those amounts represented significant savings at the time of both the original shops and the revalidation shop, and therefore that the overall message of the Swap & Save campaign, that consumers could save money by shopping at Aldi, was not misleading to consumers. Nonetheless, because we considered the way in which the comparison was presented in the ads implied more people had participated in the eight-week challenge than was the case, we concluded the ads were in breach of the Codes.

On this point, ad (a) breached BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.2 3.2 Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.  (Misleading advertising),  3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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),  3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification),  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  (Comparisons with Identifiable Competitors) and  3.39 3.39 Advertisements that include a price comparison must make the basis of the comparison clear.  (Price Comparisons), but did not breach rule  3.11 3.11 Qualifications must be presented clearly.
BCAP has published Guidance on Superimposed Text to help television broadcasters ensure compliance with rule  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  . The guidance is available at:
http://www.cap.org.uk/~/media/Files/CAP/Help%20notes%20new/BCAP_Advertising_Guidance_Notes_1.ashx  (Qualification).

On this point, ad (b) breached CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 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),  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),  3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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.  (Qualification),  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  (Comparisons with Identifiable Competitors) and  3.39 3.39 Advertisements that include a price comparison must make the basis of the comparison clear.  (Price Comparisons), but did not breach) rule  3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification)

2. Upheld

Small print in both ads indicated that verification information was available on Aldi's website. Ad (a) included the web address www.aldi.co.uk/tv. On this page a sidebar included a link, labelled "Swap & Save Challenge", which took website users to a section of the website from where they could access the document which included the verification information. However the web address given in ad (b), www.aldi.co.uk, was for Aldi's home page, from which website users must select "TV campaigns" from a drop-down menu titled "About Aldi" in order to access the www.aldi.co.uk/tv web page referenced in ad (a). We considered the web address given in ad (b) was not sufficient to enable consumers to easily locate the verification information on Aldi's website, particularly given that they must follow a link titled "TV campaigns" when they had viewed a print ad.

We noted that information on Aldi's website, including the Summary, did not provide a clear explanation that four people had undertaken the eight-week challenge, that 94 had undertaken a two-week challenge, and that the first weeks of the four individuals' shops at a competitor and then at Aldi had been counted in the results of the two-week challenge. We did, however, note that the Summary on Aldi's website provided slightly clearer information than that in the ads about the revalidation process and why it had resulted in some items being excluded from the costs of the original shops. We also noted Aldi's explanation as to why itemisation tables and receipts for the final individual had not been made available on their website and that that information was instead available on request, as were the receipts relating to the shops of the 94 individuals who had undertaken the two-week challenge and all receipts relating to the revalidation shops. A footnote on a web page in the "Swap & Save Challenge" section of their website made clear that that further information could be obtained by writing to them at their postal address, and we therefore considered it was sufficiently clear to consumers how they could obtain the additional verification information.

Notwithstanding that, because of the number and range of errors and inconsistencies in the verification information and the decisions to include or exclude items, the fact that ad (b) did not make sufficiently clear to consumers where they could verify the comparison, and the lack of clarity in the summary information accompanying the verification data about how the comparison had been made, we concluded the verification information provided was not sufficient for consumers to be able to verify the comparison themselves. We concluded the ads were therefore in breach of the Codes.

On this point, ad (a) breached BCAP Code rule  3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price.  (Comparisons with Identifiable Competitors) and ad (b) breached CAP Code (Edition 12) rule  3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price.  (Comparisons with Identifiable Competitors).

Action

The ads must not appear again in their current form. We told Aldi Stores Ltd to ensure that in future the basis for comparisons was made clear and did not mislead, and that their comparisons were verifiable.

BCAP Code

3.1     3.10     3.11     3.2     3.33     3.35     3.39     3.9    

CAP Code (Edition 12)

3.1     3.10     3.3     3.33     3.35     3.39     3.7     3.9    

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