Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A regional press ad for Virgin Media Ltd, stated "Hi Sky customers, you could save over £400 a year. Plus, right now save an extra £162 in our Red Hot Sale ... Switch and save today ...". On the right-hand side, there were two 'receipts'; one for Sky's 'The Family Bundle' and the other for Virgin Media's 'Premiere Collection'. The 'receipts' listed the features and monthly total price of the respective packages. Sky's Family Bundle was priced at £103.65 and Virgin Media's Premier Collection at £67.99. Text stated "Annual saving with Virgin Media £427.92".
Issue
British Sky Broadcasting Ltd (Sky) challenged whether:
1. the ad was misleading, because they believed the claim "Hi Sky customers, you could save over £400 a year" exaggerated the savings that Sky customers would typically make on switching to Virgin Media; and
2. the comparison, which included components that were not part of the Sky Family Bundle and were not retailed by Sky, was likely to mislead.
Response
1. Virgin Media Ltd explained that both providers (Virgin Media and Sky) offered broadly similar TV, broadband and phone services. However, the individual packages offered by each often differed. They said the intention of the comparison in the ad was to advertise the Virgin Media Premier Collection against the most like-for-like service from Sky and pointed out that the elements of each bundle were clearly set out. They believed the number of current Sky customers who took the exact combination of services set out did not affect the comparison being made or a consumer's understanding of the price saving, and added that 100% of Sky customers who did have the listed services would achieve the claimed saving.
2. Virgin Media acknowledged that BT Sport was supplied by BT, rather than Sky. They believed, however, that, because it was a service that was available to Sky customers on the Sky platform, it was legitimate for use in a comparison such as this.
Assessment
1. Upheld
The ASA acknowledged that the ad specified the products and services on which the price comparison was based. We also understood that Sky was concerned about the claim "Hi Sky customers, you could save over £400 a year", because fewer than 0.1% of current Sky customers took the exact combination of services outlined.
We acknowledged Virgin Media's intention to compare like-for-like services and understood that their view was that a combination of Sky's Family Bundle, some further services from Sky and the addition of BT Sport most closely matched Virgin Media's Premiere Collection in terms of the individual elements each contained.
We noted the ad was addressed to Sky customers and stated "… you could save over £400 a year". The headline claim was expressed conditionally and we acknowledged that it was not Virgin Media's intention to imply all Sky customers would achieve the 'over £400 a year' saving. However, given that the ad was targeted at Sky customers generally through its headline claim, we considered that it was necessary for a reasonable proportion of consumers to achieve the claimed saving. The ad encouraged Sky customers to switch to Virgin, but using the comparison in this example, only a relatively small proportion of Sky customers would save to the degree claimed.
The elements of the comparison were stated and the basis of the savings claim specified. However, we were concerned that the saving identified did not apply to a sufficient number of customers to support the claim that Sky customers could save over £400 a year.
We concluded that the ad was likely to mislead, because it exaggerated the saving Sky customers could typically achieve if they were to switch to Virgin Media.
On this point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications 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),
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration),
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
(Comparisons).
2. Upheld
We understood that Sky were concerned that Virgin Media had claimed to make a comparison between a Virgin Media package, Premiere Collection, and Sky's Family Bundle, but that they had added other Sky services plus BT Sport and ESPN channels provided by BT to produce a combination of services that most closely matched their Premiere Collection. Sky argued that a large part of the claimed '£400 a year' saving applied to services retailed and supplied by a third-party company (BT), which were not included within a Sky package.
Virgin Media believed the comparison was fair, because the combination of services identified under Sky's Family Bundle was available to Sky customers. While we acknowledged that this was the case, and understood that Virgin Media's intention was to promote their Premiere Collection to Sky customers using a like-for-like package, we considered that the likely interpretation of the presentation of the ad was that Sky's Family Bundle cost its customers £103.65 per month whereas the similar package offered by Virgin cost £67.99.
We understood that the actual cost of the Family Bundle, which comprised a selection of Pay TV channels, was £32 per month. The further services featured were added to the package for the purposes of the comparison, some of which were provided by Sky while others were not. BT Sport and ESPN were channels supplied and retailed by BT and which customers paid BT directly for.
We considered that the basis of any price comparison should be stated. The presentation in this ad implied Sky customers could save over £400, using a direct comparison with Sky's Family Bundle and Virgin Media's Premiere Collection, without making clear that, in the case of the Sky package, some of the services were only available to Family Bundle customers through a third party (BT) rather than from Sky. As a result, the bundle of services 'from Sky' was attributed solely to them and the pricing of the Sky package highlighted unfairly represented.
We considered that the ad was likely to mislead, because it incorrectly attributed services from another provider to Sky and failed to clarify the full basis on which customers of the Virgin Media Premiere Collection package would save over those of the Sky Family Bundle.
On this point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications 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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification),
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration),
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
(Comparisons) and
3.39
3.39
Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises.
(Price comparisons).
Action
The ad must not appear again in its current form. We told Virgin Media Ltd to ensure that price comparisons did not mislead by failing to use a reasonable proportion of customers in ads targeted at a general group and to also make clear the nature of the provision of services used in a price comparison.
