Background

Summary of Council decision:

Four issues were investigated, all of which were Not upheld.

Ad description

A TV ad and a national press ad for Asda:

a. The TV ad showed a selection of scones. Captions above two groups of four scones stated "SAINSBURY'S £1" and "TESCO £1" respectively. A caption above another group of scones stated "ASDA 50p 4 pack". On-screen text stated "Prices independently checked 29 Jan at Sainsbury's & Tesco. Includes Asda promotional prices" and "Selected lines, availability & stores". Voice-over stated, "... but which comes first, the jam or the cream? Well, when Asda make them in store from scratch at 50p for four, does it really matter?" The screen then widened to show loaves of bread and cakes while further voice-over stated, "And with all these fresh from our bakery at 50p each, you're better off shopping at Asda."

b. The national press ad showed a pack of Cathedral City Cheddar Cheese. Text stated "Spot the difference? You're better off at Asda - £3.50". A caption stated "Tesco £7.50". Footnote text stated "Selected stores. Available while stocks last. Offer available from 8am on Friday 21st March 2014 ... Prices checked at Asda.com and Tesco.com on 20th March 2014. Includes Asda promotional price. For verification please write to [Asda postal address] ...".

Issue

Tesco challenged whether:

1. ad (a) and

2. ad (b) were misleading, because they did not make clear that they were comparing Asda's promotional prices with everyday competitor prices; and

3. ad (a) and

4. ad (b) were misleading, because they did not make clear that Asda's promotional prices were available for a limited time only.

Response

1. & 2. Asda believed the on-screen and footnote text "Includes Asda promotional prices" in ads (a) and (b) respectively, met the need for ads to make clear the basis of a price comparison and to provide the material information a consumer would need to make an informed decision. Regarding the scones in ad (a), they said they had been on sale at Asda, at the 50p price, for 41 of the preceding 52 weeks and at 75p, for the remaining 11 weeks. They said the 50p price began four weeks before the ad and continued for nine further weeks after it. Because of that, they believed the 50p price could be seen as Asda's "normal" price. They said that, in the week leading to the date of the comparison, the price of the scones at Tesco had been £1.39 and was £1 at the time of the comparison. They therefore considered it was not possible to determine what Tesco's everyday price of the scones was. Although they believed the 50p price for the scones could be seen as Asda's "normal" price, Asda said they had included the "Includes Asda promotional prices" text to avoid misleading consumers or disadvantaging their competitors.

Asda said that, in the 11 weeks leading to the date of the price comparison, they had sold the cheese at the higher price of £6.98. In the week of the ad and for four weeks after, the price was £3.50. They said the text "Includes Asda promotional price" was included to inform consumers that the product had previously been offered at a higher price. Asda said it had not been possible to determine what Tesco's everyday price of the cheese was. Asda said it was not possible to establish how long competitors would hold their prices for or whether they would increase or decrease them.

Clearcast supplied similar information about the price history of the scones in ad (a). They pointed out that ad (a) also stated the date on which the prices were checked. Clearcast said they considered the "Includes Asda promotional prices" text was not necessary, because the price was to continue to be available for more than seven days after the last air date, but that Asda had wanted to include it anyway to add clarity. Clearcast believed viewers would interpret the ad to mean that on the date stated in the ad, and for a reasonable period afterwards, the scones would cost 50p at Asda whilst the named competitors were, at that time, more expensive.

3. & 4. Because of the time period for which the items were available at the advertised prices (as detailed above), Asda believed the ads did not need to state that the prices were available for a limited time only.

Clearcast said they required grocery advertisers to include an end date only if a price was due to end within seven days of the ad's last air date to ensure viewers had enough time to purchase the goods at the advertised price. They had not required Asda to do so in this case because of the length of time for which the price was to continue to be available. They had advised Asda to monitor prices, with the result that the ad was replaced during its run with ads which stated later dates on which prices were checked. As stated above, Clearcast said they considered the "Includes Asda promotional prices" text was not necessary.

Assessment

1. & 2. Not upheld

The ASA considered consumers would understand from the ads, both of which stated the date of the comparison but did not indicate how long the advertised prices would be available for, that on the date of the comparisons the scones were 50p at Asda and £1 at Sainsbury's and Tesco and that the cheese was £3.50 at Asda and £7.50 at Tesco, and that Asda's prices would continue to apply for a reasonable period afterwards. Because the ads focused on specific, identifiable products, we considered consumers would expect the price claims, price comparisons and "... you're better off shopping at Asda"/"You're better off at Asda" claims to apply to the products featured in the ads, but not necessarily to other specific products or to products that were generally available at Asda. We acknowledged that the supermarket sector was a fast-moving one in which prices could fluctuate frequently and might apply on a short-term basis only. On-screen text in ad (a) stated "Includes Asda promotional prices" and footnote text in ad (b) stated "Includes Asda promotional price" and "Offer available from 8am on Friday 21st March 2014", from which we considered consumers would understand the Asda prices were not long-term or permanent ones. Because the basis of the comparisons was stated, we considered, in the context of the supermarket sector and the product-specific theme of the ads, that consumers would not be misled into believing that the prices stated represented the competitors' prices more generally, but rather those that were relevant at the time the ads appeared. Because that was the case, and because Asda's 50p price for the scones and £3.50 price for the cheese continued for nine and four weeks respectively after the ads, we considered consumers were able to obtain the products at Asda at the advertised prices for a reasonable period. We also understood that they would make the stated savings in comparison with Sainsbury's and/or Tesco at the time the ads appeared. We therefore concluded that the ads were not misleading.

On point 1, we investigated ad (a) under 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),  3.10 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 find it in breach.

On point 2, we investigated ad (b) under 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),  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification),  3.33 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 find it in breach.

3. & 4. Not upheld

As discussed in 1 and 2 above, the ads stated: the dates of the comparisons; that the Asda prices were promotional; and, in the case of ad (b), that the offer was available from 8am on Friday 21st March 2014. We therefore considered consumers would expect the prices quoted to apply for a reasonable period after the ads appeared, in the context of a fast-moving sector in which prices could fluctuate frequently and might apply on a short-term basis only, but that they were not likely to expect them to be permanent or long-term. Because of that, and because the prices advertised at Asda continued to be available for a reasonable time following the ads, we concluded that ads (a) and (b) were not misleading on these points.

On point 3, we investigated ad (a) under 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),  3.10 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 find it in breach.

On point 4, we investigated ad (b) under 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),  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification),  3.33 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 find it in breach.

Action

No further action necessary.

BCAP Code

3.1     3.10     3.2     3.33     3.39    

CAP Code (Edition 12)

3.1     3.3     3.33     3.39     3.9    


More on