Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A TV and website ad for Argos products which were on sale:
a. The TV ad, seen on 27 December 2017, advertised an “Up to half price sale” and the voice-over referred to a “Hitachi 4K Ultra HDs from only £249.99”. A particular model was shown on-screen along with large text stating “50” £299.99”.
b. The product page on the Argos website, www.argos.co.uk, for a Bulova Men’s Precisionist Quartz Chronograph Watch, seen in mid-November 2017, included text stating “£299.99 Save £200.00 Was £499.99”.
Issue
The ASA received two complaints:
1. One complainant, who found the 50” Hitachi TV shown in ad (a) to be out of stock during the sale but said that once it went back to the higher price it then became available, challenged whether the ad was misleading.
2. One complainant, who found the Bulova watch shown in ad (b) to be out of stock during the sale but said that once it went back to the higher price it then became available, challenged whether the ad was misleading.
Response
1. Argos Ltd said that 8,820 units of the Hitachi 50” TV went into the sale, which they considered to be a lot of stock. They said it was unlikely that the product was out of stock everywhere and more likely to be at individual locations, and during any sale products were subject to availability. They usually had an order for replenishment stock following sales and that would explain why the product came back into stock soon after the sale ended.
Clearcast said that Argos had provided them with a confirmation that they had adequate stock to meet anticipated demand; they would monitor stock levels before and during the promotion; and that the stock was distributed around the country to reflect expected demand. Argos also confirmed that should the stock become drastically low, or any customer be unable to purchase the item in store they would be able to order it online or from another store. They further stated that they would reassess the airing of the ad, and in particular withdraw any subsequent ads in the event of stock becoming exhausted. On that basis Clearcast considered that the ad was unlikely to mislead as to the availability of the advertised products.
2. Argos said that the watch was part of a premium and slow moving line (selling a very low number of units per week). Going into the Black Friday sale they had 48 units available which was forecast as being plenty of stock based on the sales at the usual selling price, and should have been a good estimate on a jewellery line at a higher price point. They said their average price point on watches was £25 so they had less experience of selling premium lines such as this to their customer base. The product was one of 300 watches that were on promotion during Black Friday and was historically a ‘low radar’ product, so the massive sales increase was unexpected and they were unable to get additional stock in prior to the scheduled replenishment date. They had re-ordered stock of the product to come in following the promotion, hence the availability of the product immediately following the end of the sale.
Assessment
1. Upheld
The ASA noted that the ad included small print that stated “While stocks last” and “subject to availability”. Although consumers were likely to appreciate that stock was limited overall, we considered that they would understand that they had a reasonable chance of purchasing the TV at the reduced price. We therefore considered that viewers were likely to understand that the products shown were generally available at the advertised prices. The BCAP Code required broadcasters to be satisfied that advertisers had made a reasonable estimate of demand. To that end, Argos had provided Clearcast with an assurance that sufficient stock was available. We understood that the complainant had checked for the product in multiple stores in their local area but had been unable to find it available. We expected that Argos should be able to demonstrate that they had made a reasonable estimate of demand and that stock was distributed around the country to meet that demand. We also expected that they should take measures to amend or withdraw ads should stock become low or exhausted. However, we had not been provided with any information to demonstrate how Argos had estimated demand for the TV based on previous sales. Argos had also not provided any information regarding the distribution of the product or the rate at which the product sold out. In the absence of evidence that Argos had made a reasonable estimate of demand, we concluded that the ad was misleading.
Ad (a) breached BCAP Code rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section
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.
2).
(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),
3.28
3.28
Broadcasters must be satisfied that advertisers have made a reasonable estimate of demand.
3.29
3.29
Advertisements that quote prices for featured products must state any reasonable grounds the advertisers have for believing that they might not be able to supply the advertised (or an equivalent) product at the advertised price, within a reasonable period and in reasonable quantities. In particular:
and
3.29.1
3.29.1
if estimated demand exceeds supply, advertisements must make clear that stock is limited
(Availability).
2. Upheld
We noted that the listing did not include any indication that availability was limited. We considered that consumers would understand that the watch was generally available at the discounted price. We acknowledged that Argos had forecast demand based on sales of the item at the usual selling price of £499.99. As the item was at a high price point and had historically not sold in high volumes, a very low number of units were made available for purchase across the country. We had not been provided with information on the distribution of those items. We noted that the promotion offered a £200 discount on what consumers were likely to regard as a premium item. We therefore considered that it would be reasonable to anticipate an uptick in sales. For that reason, we considered that a forecast based on previous sales of the item was not sufficient to demonstrate that Argos had made a reasonable estimate of demand in the circumstances. We also noted that we had not seen evidence that they had referred to previous sales of reduced items at a similar price point, for example. Neither had we been provided with information about the steps Argos had taken to monitor stock and ensure that it was made clear to consumers once the item was no longer available at the promotional price. Given the ad’s implication of widespread product availability, we therefore concluded that the ad was misleading.
Ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section
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.
2).
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are 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),
3.27
3.27
Marketers must make a reasonable estimate of demand for advertised products.
3.28
3.28
Broadcasters must be satisfied that advertisers have made a reasonable estimate of demand.
and
3.28
3.28
Broadcasters must be satisfied that advertisers have made a reasonable estimate of demand.
1 (Availability).
Action
Ads (a) and (b) must not appear again in the forms complained about. We told Argos Ltd to ensure that they held evidence to demonstrate that they had made a reasonable estimate of demand.
