Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A wrap-around four-page national press ad for Aldi, published on 6 December 2023, included on the first page an image of a whole roast turkey, vegetables, Yorkshire puddings, stuffing and gravy. Text stated “THE HOME OF BRITAIN’S CHEAPEST CHRISTMAS DINNER WHY GO ANYWHERE ELSE?”. Further text in a roundel stated “REVIEWED BY Which? Budget-friendly Christmas Dinner” and text in a box underneath stated “2022 PRICE LOCKED”. Small text at the bottom of the page stated “Which? checked the prices of 12 traditional Christmas dinner staples between 6 and 27 November at seven UK supermarkets and found Aldi to be a budget-friendly supermarket for a Christmas dinner shop”.
The fourth page of the ad featured the same image and claims, with the additional text “Sainsbury’s £44.81”, “Aldi £33.80” and “Swap & Save over 20% on your Christmas dinner”. It included the same small text at the bottom as on the first page, with the additional text “According to results published by Which?, Aldi’s Christmas dinner came in at over 20% cheaper than Sainsbury’s. For more information, please visit www.aldi.co.uk/which”.
Issue
J Sainsbury plc t/a Sainsbury’s challenged whether:
1. the comparative claims “THE HOME OF BRITAIN’S CHEAPEST CHRISTMAS DINNER”, “Sainsbury’s £44.81”, “Aldi £33.80” and “Swap & Save over 20% on your Christmas dinner” were misleading and could be substantiated;
2. the same claims were verifiable; and
3. the claim “2022 PRICE LOCKED” was misleading.
Response
1. Aldi Stores Ltd t/a Aldi said the claims were made in the context of an independent third party comparison by Which?, detailed in an article on the Which? website, titled “Which is the cheapest supermarket for Christmas dinner ingredients”. That was clear in the ad because the roundel that referenced Which? was placed next to the claim “THE HOME OF BRITAIN’S CHEAPEST CHRISTMAS DINNER”. The wording in the roundel was approved by Which?. Aldi felt it was appropriate to rely on the Which? data and not provide their own additional data. It was common market practice and was preferable to providing multiple datasets for substantiation as that would likely confuse consumers.
The Which? article stated the pricing data related to the period 6 to 27 November 2023, so it was clear to consumers when the price comparison had been made. Aldi considered the ad should be viewed in context, which included that it was published on 6 December 2023. Consumers would therefore not understand the comparisons to relate to prices charged in the week before Christmas, because that would be impossible. They said that if retailers could only use data collected in the week before Christmas it would prevent them from relying on consumer reports produced by bodies such as Which?, and in practice may also prevent them from preparing price comparison ads in time for the Christmas period. This would similarly apply to other key and seasonal events and would discourage retailers from comparing – and therefore competing on – price for such events.
The choice of products to include as Christmas dinner ingredients had been made by Which?. That included the selection of one organic produce item when others were non-organic, some branded and some own-label products, and comparing products that were different weights at some supermarkets. Aldi noted that supermarkets did not always sell the same products in the same quantities, and that CAP Guidance relating to ‘basket of goods’ comparisons allowed that comparisons of branded versus non-branded products could be made so long as the differences were made clear in the ad and the comparison was fair and representative.
Aldi acknowledged that some of the products featured in the ad were not included in the Which? Comparison. They but said that the featured products were representative only and consumers could easily see which items had been compared by Which? in the website article.
Which? had found that the price differential between Aldi and the second-cheapest supermarket, Lidl, was 4p, and so had also given Lidl a “Budget-friendly Christmas Dinner” award. Aldi asserted that this did not change the fact that they were the cheapest. The claim “BRITAIN’S CHEAPEST CHRISTMAS DINNER” could therefore not be considered misleading on the basis that the difference was small. Furthermore, if the complaint was upheld on that basis, it would create uncertainty in relation to all price comparisons where differences were small, and would discourage ads – and therefore competition – on price. They also considered that factors such as transport costs and consumers’ distance to stores were not relevant factors to consider, because the ad made a specific claim about the price of a selection of goods. Those factors might be relevant if the ad had made a general claim that shopping at Aldi was cheaper for consumers altogether, but it did not. They also believed there was no evidential basis that travel to an Aldi store would be more expensive than to a Lidl store.
Aldi considered that the small print in the ad, which provided some detail about the basis of the comparison, was sufficiently prominent and was similar in presentation to small print in other ads.
Which? said they were not involved in how Aldi presented the report in their advertising. They said the article was published in early December 2023 to help provide information to consumers in the run-up to Christmas. It set out relevant information, such as the date range for when the data was collected, if they had included a premium product, and a table of the products they compared, which included the weight ranges for the products. They used weight ranges in all their grocery pricing analysis as there tended to be little consistency in the weight of own label groceries across supermarkets. The ranges were set by their external data provider, whose expertise they trusted. The weight ranges tended to be small, and Which? made sure to review and sense check them. The approach allowed them to provide easily digestible data that helped shoppers compare on overall price.
2. Aldi said the verification for the claims was in the Which? article, which stated the weight range of all the products that were compared, as well as the name of the retailer, the product name and the price. Consumers would therefore be able to identify which own-label products had been compared.
Aldi also considered the ad adequately signposted where consumers could find the Which? article. The last page of the ad included a link to Aldi’s website (www.aldi.co.uk/which) in the small text, which they considered was sufficiently prominent. The page on their website provided a summary of the Which? article and a direct link to it. The link to Aldi’s website was not included on the first page of the ad because it was limited by space.
3. Aldi said they had used the “2022 PRICE LOCKED” message throughout the Christmas period, including in ads which did not also refer to the Christmas dinner price comparison. Information about the terms and conditions of the price lock claim was available on their website. They believed consumers were familiar with the price lock message and had been educated to understand that it meant that certain products were no more expensive than they were at Christmas 2022. They did not believe that consumers would interpret it, in the context of the ad under investigation, to mean that all Aldi products included in the Christmas dinner comparison were price locked.
Assessment
1. Upheld
The front-page claim “THE HOME OF BRITAIN’S CHEAPEST CHRISTMAS DINNER WHY GO ANYWHERE ELSE?” appeared alongside the roundel which stated “REVIEWED BY Which? Budget-friendly Christmas Dinner”, and above images of a whole roast turkey, roast potatoes, gravy, stuffing, Yorkshire puddings, carrots, Brussels sprouts and parsnips. A further roundel appeared at the bottom of the page that stated “NOVEMBER 2023 Which? Cheapest Basket”. In that context the ASA considered consumers would understand that the total cost of buying the ingredients at Aldi for a typical Christmas dinner would be cheaper than in any other British supermarket, so there would be no reason to shop around. We considered they would further understand that the price comparison was based on Which? research and that Which? had given Aldi a “cheapest Christmas dinner” award. While small text at the bottom of the ad stated that the comparison related to “seven UK supermarkets”, we considered the text was so small that many readers would overlook it, and it was therefore insufficiently prominent to counteract the impression that the comparison related to all British supermarkets.
The back page of the ad featured the same main claim, Which? roundel, and imagery, and also included the claims “Sainsbury’s £44.81”, “Aldi £33.80” and “Swap & Save over 20% on your Christmas dinner”. We considered consumers would understand that page in the same way as the front page, but also that it was highlighting the specific price difference for the total cost of a typical Christmas dinner between Sainsbury’s and Aldi, as found by Which?.
We acknowledged that Which? was an authoritative resource for consumers who were looking to compare products and services based on a range of considerations, including price. However, where advertisers chose to include comparisons with their competitors in their advertising they were required to hold adequate evidence to substantiate those claims, and to ensure the claims were not misleading. That was the case whether the claims were based on data they had collated themselves or on third party data.
We reviewed the substantiation for Aldi’s advertising claims, which was contained in article on the Which? website relating to the price comparison.
The comparison included seven UK supermarkets, rather than all British supermarkets as would be understood by consumers who saw the ad. We also noted that the Which? article stated that the Christmas dinner was only 4p cheaper at Aldi compared to Lidl, and that “as this difference was negligible Which? decided to embrace the Christmas spirit by giving both of the discounters a festive food pricing crown”. Which? therefore had not awarded Aldi as the “cheapest Christmas dinner” as implied by the overall presentation of the ad, but as a “Budget-friendly Christmas Dinner”. While Aldi was technically the cheapest, this was by a negligible amount, and we considered that it was information that was likely to influence consumers’ understanding of the claim and any transactional decision they might make because of it, since their choice of which supermarket to visit would also be impacted by other factors such as their relative distances or transport costs. We therefore considered the ad was misleading about the basis of the comparison in those regards.
Sainsbury’s believed one reason the ad was misleading was because the price comparison was not representative of prices during the period when consumers would be purchasing fresh produce for their Christmas dinner. They said supermarkets generally introduced final prices and promotions for typical Christmas dinner items in the last week or so before Christmas, and highlighted that the comparison primarily included fresh products with a short shelf life (seven out of 12 products). We acknowledged the ad’s small text stated the date range when the comparison was conducted, but as referenced above we considered readers would be likely to overlook that information because it was insufficiently prominent. Notwithstanding that, we considered consumers would understand that the intention of the ad was to encourage them to choose Aldi for their Christmas dinner shop specifically, which would include a range of fresh products which could only be purchased shortly before Christmas day, because it would be cheaper than any other supermarket. As such, consumers would expect that the comparison was based on the prices they would pay in the week or so before Christmas, despite the fact that the ad was published in advance of that period. Because the comparison related to price checks conducted between 6 and 27 November and prices were likely to have changed by the time consumers would be purchasing their Christmas dinner, we considered the ad was also misleading in that regard.
The comparison related to 12 products. While Christmas dinner differed between households, we considered that the products represented a selection of items that were likely to be included in a typical ‘Christmas dinner’ by many consumers. Notwithstanding that, we considered consumers would expect that all the foods featured in the ad would have been included in the comparison. That was not the case: the ad featured a whole turkey, when the comparison related to a turkey crown; and Yorkshire puddings and stuffing, which were not included in the comparison at all. We considered the ad was misleading about the basis of the comparison in that regard.
Sainsbury’s had also queried the selection of products in that one produce item was organic (broccoli) whereas the others were non-organic, and some products were own-label and others were branded. It was not clear why the selection of items was not consistent in these regards. However, we considered that in principle this was acceptable so long as it was clear to consumers which items had been compared, and the selections did not skew the comparison in favour of one supermarket over another. The same items had been compared across the supermarkets and the table on the Which? website specified what the items were (save for the weights – see below). We did not have reason to believe the selection of items had skewed the comparison.
The table in the Which? article listed the 12 products, the product weight, and the price of the product at each supermarket. However, in seven of the 12 comparisons, the table stated a weight range for the product. For example, for own-label pigs-in-blankets, it indicated the weight of the compared items ranged from 175g to 300g at different supermarkets, meaning the smallest item was a little over half the size of the largest. We considered that without an indication of the specific weight of the product at each supermarket alongside the price, the basis of the comparison was not clear and could not be adequately substantiated. We further considered it was necessary to make this clear because consumers would be taking into account the number of people eating Christmas dinner, and the product weight/pack size was therefore likely to influence their purchasing decision. We considered the ad was misleading in that regard.
For the reasons set out above, we concluded that the claim “THE HOME OF BRITAIN’S CHEAPEST CHRISTMAS DINNER” and the claims specifically comparing the price of Christmas dinner at Aldi with Sainsbury’s were misleading and had not been substantiated.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.9 and 3.10 (Qualification), 3.17 (Prices), 3.33 (Comparisons with identifiable competitors) and 3.39 (Price comparisons).
2. Upheld
The CAP Code required that comparisons with identifiable competitors must be verifiable. That meant that an ad which featured a comparison with an identifiable competitor or competitors needed to include, or direct consumers to, sufficient information to allow them to understand the comparison, and be able to check the claims were accurate, or ask someone suitably qualified to do so.
The ad was a wraparound, meaning the first page of the ad was the front of the newspaper, and the final page of the ad was the back of the newspaper. We considered that separation meant that some readers would have seen only the first page of the ad, and therefore any signpost to information that would allow consumers to verify the comparative claims should have appeared on both pages where the claims were made. We further considered there was sufficient space on both pages to include such a signpost, in text large enough that it would not be overlooked by readers.
Both pages included the roundels that referenced Which?, but we considered those were not sufficient to signpost consumers to where they could find information about the comparison. The first page of the ad did not include any information as to where consumers could verify the comparison. The final page of the ad included the text “According to results published by Which?, Aldi’s Christmas dinner came in at over 20% cheaper than Sainsbury’s. For more information, please visit www.aldi.co.uk/which” in small print. We considered that wording made clear that consumers could find information about the comparison with Sainsbury’s on that webpage, but not that information about the broader comparison with all supermarkets could also be found there. Additionally, as referenced at point 1, we considered the text was likely to be overlooked by readers. As such we considered that neither the first nor final page of the ad adequately signposted where consumers could find information that would allow them to verify the price comparisons.
As also referenced above at point 1, the verification information on the Which? website did not make clear the weight of each product at each supermarket. We considered that was information that was necessary for consumers to be able to understand, and therefore verify, the comparison.
We concluded the price comparison was not verifiable, because the ad did not adequately signpost where consumers could find information to verify it, and because the verification information was not sufficient for consumers to understand it or check it was accurate.
On that point, the ad breached CAP Code (Edition 12) rule 3.35 (Comparisons with identifiable competitors).
3. Upheld
The claim “2022 PRICE LOCKED” appeared alongside the claim “THE HOME OF BRITAIN’S CHEAPEST CHRISTMAS DINNER”, below the roundel that referred to the “Which? Budget-friendly Christmas Dinner”, and above the images of Christmas dinner foods, on both the front and back pages of the ad. The ad did not include any further information regarding the price lock claims. In that context we considered that consumers would understand that the price of all the foods included in the Christmas dinner price comparison (which as referenced above we considered consumers would understand to include all the foods featured in the ad), were the same price at Aldi at Christmas 2023 as they had been at Christmas 2022.
However, Aldi’s ‘price lock’ did not include gravy, stuffing or Yorkshire pudding (as featured in the ad), or Bird’s Eye garden peas, Albert Bartlett rooster potatoes, cauliflower, broccoli, cranberry sauce or Knorr chicken stock pots (as included in the Which? comparison). We therefore concluded the ad misled as to the products that were included in Aldi’s ‘2022 price lock’.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.17 (Prices).
Action
The ad must not appear again in the form complained of. We told Aldi Stores Ltd t/a Aldi to ensure that price comparisons with their competitors were not misleading, and that the basis of such comparisons was clear and adequately substantiated. That included that price comparisons which would be understood by consumers to relate to products to be bought during a specific time period were substantiated by evidence relating to prices that applied during that time period. We told them to ensure that they provided sufficient information for consumers to be able to verify competitor comparisons for themselves. We also told them to ensure their ads did not make misleading comparisons with their own previous prices.
CAP Code (Edition 12)
3.1 3.7 3.17 3.33 3.35 3.10 3.9 3.39
