Background

Summary of Council decision:

Five issues were investigated, all of which were Upheld.

Ad description

A TV ad for Aldi's "Swap and Save" challenge featured shots of a woman going about family life and shopping amongst shots of her speaking directly to the camera. She said, "So I was very pleasantly surprised at the variety - the fresh food, the meat, the fruit and veg - it's cheap and it's good. I think £45 a week is a lot of money given that we've got to spread it so thinly amongst so many things. So it's definitely worth doing for us. Meaning that we can go on an extra holiday a year."

Text at the bottom of the screen stated "88 out of 100 people saved. Challenge completed between 01/04/13 and 26/05/13". On-screen text against a white background stated "Tracy. Still Saving?" and "Could you Swap and Save? Aldi.co.uk/swap".

Issue

Asda challenged whether the ad would mislead consumers, because they believed:

1. the selected elements of the comparison could give the advertiser an unrepresentative advantage;

2. the basis of the comparison and savings claims was unclear;

3. the type of products, including price promotions or product size, included in the comparison could not be verified;

4. the comparative data period referenced in the ad (01/04/13 - 26/05/13) was out of date and invalid for a price sensitive market; and

5. the savings claim "I think £45 a week is a lot of money given that we've got to spread it so thinly amongst so many things. So it's definitely worth doing for us. Meaning we can go on an extra holiday a year" implied that savings achieved in one month would produce similar savings in the future when this could not be substantiated on the basis of the Swap & Save comparison.

Response

Aldi Stores Ltd said this was a new type of campaign and before it was launched, they had extensive discussions with Clearcast and McCann Manchester. They said the aim of the campaign was to demonstrate that by swapping from their regular supermarket to Aldi, families could meet their shopping needs and achieve worthwhile savings. They said this was information the consumer had a clear interest in receiving. Aldi explained that all participants were independently recruited and between 1 April and 26 May 2013 were invited to undertake their normal grocery shop for four consecutive weeks at their usual supermarket, then to swap to Aldi for four further consecutive weeks. They said McCann Manchester objectively compared the difference with all receipts retained weekly for comparative purposes.

1. Aldi said to ensure the comparison of purchases was as fair as possible, items were excluded that could not be bought from the core Aldi range such as clothing and DVDs, special pharmacy items, "special buy" items (usually electronics, clothing and furniture) and high ticket "special items" such as spirits. They said the savings represented the actual savings achieved by an individual who was not influenced in terms of the range of goods that they purchased within the period in question or how much they spent. They said the "selected elements" were beyond their control other than the exclusion of "special items" and Aldi "special buy" goods. They said that, if "high ticket" items had been included in the comparison, the savings would have in fact been greater in seven out of ten cases.

Clearcast understood from Aldi that the participants in the challenge agreed to do their normal weekly shop at their usual supermarket and then repeat their same shop at Aldi. They were advised that certain items were excluded to ensure that the comparable shop was as fair as possible. Clearcast accepted that a comparable shop could give an advertiser an unrepresentative advantage if it was conducted in a unscrupulous manner, but in these circumstances felt Aldi had tried to make this challenge as fair and open as possible.

2. & 3. Aldi said ASDA had mistakenly interpreted the campaign as a price comparison. They said taking Tracy's instalment in isolation from the series, which was described in the launch instalment, the viewer would have gathered that Tracy had done her weekly shopping at Aldi, a supermarket of which she had no previous experience, and had made savings that amounted to £45 per week. They said the basis of the comparison was made clear on their website, which provided information about the campaign and from which a consumer would understand the following: Tracy had shopped for four weeks at her current supermarket and then shopped for four weeks at Aldi; she selected the products she bought on each occasion and only non-grocery items were left out; she had been asked to report the savings she made; her average spend in the first four weeks was £142.20 and her average spend over four weeks at Aldi was £95.56 and this was the basis of the £45 weekly saving. They said they were not stating that the goods purchased from Aldi were the same or similar to those purchased from another supermarket the preceding week, which was why the on-screen text in the ad asked the question "Could you swap and save?" rather than making a claim.

Aldi said the £45 figure had clearly not been arrived at by individual product price comparisons and the basis of the comparison of cost was by reference to Tracy's overall weekly spends at the two stores. They said it would have been obvious that on each shopping trip an individual selection of products would have been made, which was demonstrated by the different spends from one week to another. They said that during the campaign no requests were made to provide any further substantiation and had they received requests from viewers, they would have supplied photocopies of the full receipts with the non-grocery items highlighted that were not taken into account. They explained that they had not published this information on their website as it would have been an unwarranted intrusion into the privacy of the families concerned, but they were happy to do so if necessary.

Clearcast said the ad was a 20-second version of the ongoing Swap and Save campaign, which they believed viewers would have been familiar with and would have known that the basis of the comparison was a comparative shop between Aldi and their usual supermarket. They said since the ad had run, Aldi had agreed to make their data more verifiable. They said Aldi had confirmed that the full customer shopping information was available upon request, so they were satisfied that the savings claims could be verified. They shared Aldi's view that this information could breach the individual's confidentiality if published on Aldi's website, but believed it should be made available.

4. Aldi said that because a campaign like this took time to complete, the data-set would inevitably be less than fully current. They said when the campaign was run in September/October and the information was still sufficiently current to be a valid indication of the likely savings that could be achieved by consumers using Aldi. They said if shoppers were asked to buy the same products at different times then price sensitivity might be relevant, but this was not the case. They provided information they had sent to Clearcast that suggested their prices had not significantly changed since April/May.

Clearcast said Aldi had provided an assurance in October that neither their prices nor their competitors had changed significantly since April/May. Clearcast accepted that the market was very price sensitive, but did not think the fluctuation of prices in the industry would be significant enough to deem the challenge invalid and out of date.

5. Aldi said there was no reason to suggest, given the process followed, that the savings achieved were not typical and could not be repeated over a period of time. They said this complaint related to words Tracy chose to articulate her experience and she was speaking subjectively as a member of the public. They said viewers who saw the launch trailer or went to the website would have understood that her estimate was based on a fou- week experience and was therefore an extrapolation in which Tracy assumed a similar rate of savings across the year. Aldi noted that the precise saving depended on individual buying patterns, it could not be proved, which is why the ad raised, but did not presume to answer, the question "Tracy. Still saving?" They highlighted the questioning nature of the ad and noted that it concluded with another question, "Could you swap and save?"

Clearcast said this campaign was based on challenging viewers to see if they could save, which was made clear. Although Tracy had saved an average of £45 per week during the challenge, Clearcast said there was no suggestion that she would save the same amount in the future. The ad questioned whether she was still saving, which was highlighted with the on-screen text "Tracy. Still Saving?" Clearcast said it could be argued that the £180 Tracy saved by completing the challenge could count towards the cost of the extra holiday along with any savings she made in the future.

Assessment

1. Upheld

The ASA noted that participants in the "Swap and Save" had been told to conduct their weekly shop as usual and that they could spend as much as they liked. However, we considered that a number of items were excluded from the total savings and this was not made clear in the ad. While we noted that Aldi had excluded these items in order to ensure the comparison was fair, we understood that a number of these items were likely to be sold both in Aldi and in competing supermarkets. We considered that the exclusion of certain items that consumers might reasonably consider to be part of their regular shopping (such as the "high ticket" items referred to by Aldi) could give Aldi an unrepresentative advantage in the comparison. We noted Aldi's view that in many cases the inclusion of these items could have increased the saving, but given that this was not the case in all of the comparisons and that it would not have been clear to viewers that these items were excluded, we concluded that the ad therefore created a misleading impression of the overall benefit to viewers of shopping at the advertiser's stores rather than those of their competitors.

On this point, the ad breached rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.    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),  3.33 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) of the BCAP Code.

2. Upheld

We noted that Aldi had not specified exactly what products participants should buy and had not asked them to buy the same products at each store. We also noted their view that this was a new type of campaign that was different from price comparisons between competitors. We considered that it was important that viewers understood the basis of the comparison, that participants had been invited to conduct their usual shop at their usual supermarket for four weeks and then at Aldi for the following four weeks. However, we noted that this was not stated in the ad. We noted that the basis of the comparison was made clear on Aldi's website and Clearcast's comment that this ad formed part of a larger campaign and viewers would therefore be aware of this premise. However, we considered that this was important information that viewers needed to be aware of to understand the basis of the savings claim and, as this ad had not made this sufficiently clear, we concluded it was misleading.

On this point, the ad breached rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.    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),  3.33 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) of the BCAP Code.

3. Upheld

We noted that Aldi had not provided a full breakdown of the items or types of items bought by participants on their website, but were prepared to provide this information to anyone who requested it. We considered that, given the number of competitors in the market, the comparison in the ad between the participant's usual supermarket and the advertiser was a comparison with an identifiable competitor. The basis of the comparison should therefore have been verifiable. We noted that the ad referenced the relevant section of Aldi's website, but a full breakdown of information was not available on the website, nor was it made clear that the information was available on request. We noted Aldi's point that they had chosen to omit this information to avoid breaching the participants' confidentiality, but we considered that the ad should have clearly indicated how the information about the products included in the comparison and their prices was verifiable. As it was not, we concluded that the ad breached the Code.

On this point, the ad breached rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.    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.    3.5 3.5 Subjective claims must not mislead the audience; advertisements must not imply that expressions of opinion are objective claims.
 (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),  3.33 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.    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  3.39 3.39 Advertisements that include a price comparison must make the basis of the comparison clear.  (Price comparisons) of the BCAP Code.

4. Upheld

We noted that by the time the ad aired, the data was several months old. We also noted that on-screen text stated the dates when the challenge occurred. While we accepted that, even in such a price sensitive market, it was possible that prices would not have fluctuated significantly enough to make the claims in the ad misleading, we had only seen evidence that suggested Aldi's prices had not changed significantly. We had not seen evidence that the prices of competitors had also not changed significantly and therefore concluded that it was not possible to tell whether the savings claims were accurate when the ad was broadcast and that the ad was misleading.

On this point, the ad breached rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.    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) and  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) of the BCAP Code.

5. Upheld

We noted that the claim was made by Tracy, a member of the public who had not been told what to do or say. However, we considered that, because Aldi had chosen to include this comment in their ad, the claim had to be clear and unlikely to mislead viewers. We noted that the claim was based on Tracy's experience of the Swap & Save challenge and that Aldi believed it would be clear that Tracy had assumed her savings over the four-week period would continue. While we noted that the ad questioned whether Tracy was still saving, we considered that the reference to an extra holiday a year came after the question had been posed and could therefore be seen as an answer, implying that the £45 per week saving was likely to continue. We also considered that the impression created by the ad was that the saving was based on all the items sold by both the advertiser and their competitors and that might form part of a consumer's regular shopping, and that the differences in prices had been maintained over time. As the advertiser had not shown this to be the case, we considered that the claim that the savings, based on a consumer's regular shopping, would be continued over the course of the year had not been substantiated and that the claim was misleading.

On this point, the ad breached rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.    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.    3.5 3.5 Subjective claims must not mislead the audience; advertisements must not imply that expressions of opinion are objective claims.
 (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),  3.33 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),  3.39 3.39 Advertisements that include a price comparison must make the basis of the comparison clear.  (Price comparisons) and  3.45 3.45 Testimonials or endorsements used in advertising must be genuine, unless they are obviously fictitious, and be supported by documentary evidence. Testimonials and endorsements must relate to the advertised product or service. Claims that are likely to be interpreted as factual and appear in advertisements must not mislead or be likely to mislead.  (Endorsements and testimonials) of the BCAP Code.

Action

The ad must not appear again in its current form. We told Aldi Stores Ltd to ensure that the basis for comparisons were made clear in their future ads and that they should be able to provide substantiation for any savings claims made on the basis of these comparisons. We also told them that, in order to make the comparison verifiable, they should amend the ad to include either a postal address to which viewers could write for full details of the comparison, including which products were included and at what prices, or a web address that linked directly to a page about the campaign that included such details or a postal address.

BCAP Code

3.1     3.2     3.33     3.35     3.38     3.39     3.45     3.5     3.9    

---

More on

• Food, drink and supplements

---