Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The ASA often receives complaints from consumers who have been unable to purchase a product at the advertised price. Under the CAP Code, marketers must make clear in ads if product stock is limited and must make a reasonable estimate of the likely demand for the product. If a product becomes unavailable, marketers must, where possible, withdraw or amend ads featuring the product.
Make a reasonable estimate of demand
Make any limitations on availability clear
Don’t advertise a product which is unavailable
Don’t falsely claim a product will be available only for a limited time
Be aware of availability when running promotions
Be aware of availability in travel marketing
Make a reasonable estimate of demand
Marketers must make a reasonable estimate of the likely demand for advertised products (Rule 3.27). Often, a reasonable estimate should be based on previous sales data for the same or similar products, and should consider factors such as price, how much a product is advertised, and the time of year when making an estimate.
In 2015, the ASA decided ASDA had made a reasonable estimate of demand for an Easter promotion on salmon. The ASA reached this decision because ASDA had scrutinised sales data from previous Easter and Christmas promotions on salmon. The ASA also acknowledged how ASDA had paid greater attention to the 2014 Easter promotion, given how the promotion in question would also be running over that particular holiday (ASDA Stores Ltd t/a ASDA, 24 June 2015).
Conversely, the ASA upheld a complaint about an ad from Argos for a watch which offered a £200 discount. The advertiser could not demonstrate that they had made a reasonable estimate of demand. The ASA concluded that a sales forecast based on the usual selling price was not a sufficient basis to estimate the demand of a heavily discounted watch during a promotional period. This was because the watch was a highly priced item, which did not historically sell in high volumes, and because the discount was significant (Argos Ltd, 09 May 2018).
The type of publication in which the ad appears might also be relevant to the estimate of demand. An ad published in a national magazine is likely to generate a greater response than an ad in the regional press or media with a smaller audience.
Make any limitations on availability clear
Ads which quote a price for a featured product must state if the marketer may not be able to supply the product (or an equivalent) at the price advertised within a reasonable period and in reasonable quantities (Rule 3.28). Phrases such as “subject to availability” may not always be sufficient to make a limitation clear.
If the estimated demand exceeds supply, ads must make clear that stock is limited (Rule 3.28.1). For example, in 2022 a complainant challenged whether Argos’ website was misleading, as a product page simply stated the Xbox Series X was in stock. Despite extensive searches inputting various postcodes, the complainant could not find a console to purchase. The ASA concluded the ad should have made clear that availability was extremely limited, and restricted to certain locations (Argos Ltd t/a Argos, 12 October 2022).
If the purpose of the ad is to assess potential demand, rather than to fulfil orders, it must be clear that this is the purpose of the ad (Rule 3.28.2). Similarly, ads must not mislead consumers by omitting, for example, geographical restrictions on availability (Rule 3.28.3). For example, in 2021 the ASA ruled against an influencer’s Youtube video, as it was not made sufficiently clear that a particular make-up product was not guaranteed within a ‘Glossy Box’ (The Hut.com Ltd, 1 December 2021).
Don’t advertise a product which is unavailable
If a product becomes unavailable, marketers will be required to show evidence of stock monitoring, communications with outlets and the swift withdrawal of marketing material whenever possible (Rule 3.29).
In 2021, a complaint was lodged about an ad which stated a return flight from London to Orlando was £464.50, after the complainant realised the flight was not available at this price. Given there was no evidence to indicate the flight was available to consumers at this price, the ASA decided Rule 3.29 was breached. The advertiser was told to ensure they had processes in place to frequently update prices (Flights & Holidays UK Ltd, 6 January 2021).
The ASA also ruled against an ad which continued to include certain hotels in a promotional drop-down menu, despite those hotels being fully booked. The ASA decided that sufficient information about availability had not been provided, which meant consumers could not make an informed decision as to whether to participate. The ASA also held that the ad had not been adequately amended when the hotels in question became unavailable (VUR Village Trading No 1 Ltd t/a Village Hotels, 27 April 2016).
Don’t falsely claim a product will only be available for a limited time
Ads must not falsely claim that a product, or the terms on which it is offered, will only be available for a very limited time to deprive consumers of the time to make an informed choice (Rule 3.31). Several ads in recent years have breached this rule.
For example, in 2023 the ASA upheld complaints against an ad which said ‘Only 14 tickets remaining’ alongside a partially advanced status bar. The ASA ruled that consumers would interpret the ad to mean the majority of tickets were already sold, meaning they should act quickly to secure the remaining tickets. Given there were actually 44 (of 50) tickets still available, the ad was deemed misleading (Uppholdings Ltd t/a CluedUpp Games, 22 November 2023).
Similarly, the ASA decided consumers would feel obliged to act quickly to secure a pair of hearing aids due to the inclusion of ’17 sold in 24 hours…3 left in stock’. Given this did not accurately reflect stock levels, and because consumers were unnecessarily hurried into a decision, the claim was deemed misleading (Essential Sounds Hearing, 1 November 2023).
Branshaws’ inclusion of ‘Hurry! Limited stock’ in a mini heater ad was also deemed misleading. Branshaws had only ordered half of the heaters they thought they could sell, and so believed the reference to ‘Limited stock’ was justified. However, Branshaws had not sold the product previously. Nor did they possess historic sales figures for either the product or an equivalent. The ASA were therefore unable to ascertain if the estimate was reasonable such that consumers needed to act quickly (Prime Star Shop Ltd t/a Branshaws, 16 August 2023).
See also Swytch Technology Ltd t/a Swytch, 22 February 2023 and Verisure Services (UK) Ltd t/a Verisure, 17 November 2021.
Be aware of availability when running promotions
In addition to Section 3 rules, Section 8 contains additional rules governing the availability of promotional items.
Promoters must be able to demonstrate that they have made a reasonable estimate of the likely response to a promotion. Additionally, promoters must show they were either capable of meeting that response, or that consumers were given sufficient information on availability, presented clearly and in a timely fashion, to make an informed decision about whether to participate (Rule 8.10).
How to estimate demand will ultimately depend on the structure of the promotion, but calculating an estimate based on the demand of a similar past promotion is likely to be a useful starting point.
Including a phrase like “subject to availability” does not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants (Rule 8.9)
For in-depth guidance, see Promotional marketing: Availability.
Be aware of availability in travel marketing
There are specific requirements on availability which advertisers must be aware of when marketing prices in travel ads.
For detailed guidance, see 'Travel Marketing: Availability'