Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
The Argos website, www.argos.co.uk, seen in September and October 2021, included product listings for the Xbox Series X 1TB Console (in black) and the Xbox Series X 1TB Console (in white). On-screen text on the listing for the black model stated, “Going Fast! Last purchased 1 minute ago” and “Selling Fast! Purchased 24 times since your last visit”. On-screen text on the listing for the white model also stated “In Demand! 100+ others added this to basket today”.
Issue
1. One complainant, who understood that Argos did not have stock of the Xbox Series X 1TB Console (in black), challenged whether the claims “Last purchased 1 minute ago” and “Purchased 24 times since your last visit” were misleading and could be substantiated.
2. One complainant, who understood that the Xbox Series X 1TB Console (in white) was not available either for collection or delivery in any location they selected, challenged whether the ad was misleading.
Response
Argos said that overall, 9,159 units of X Box Series X 1TB Console, covering both models noted in the complaint, had been sold between 13 September 2021 and 7 November 2021. They said that they could not provide historical closing stock positions, as that data was not kept on record.
1. They said that on the day the complainant saw the messages “Last purchased 1 minute ago” and “Selling Fast! Purchased 24 times since your last visit”, 172 consoles had been sold. They said that availability had depended on the geographical vicinity of customers. They also confirmed that they had received Primary Authority Assured Advice concerning the wording of the pop-up messages.
2. Argos said that the products in question had not completely gone out of stock at the time the ad was seen, but they had only limited availability, which they said had been highlighted on the website. They said they tried to accurately forecast supply based on availability, but that their stock levels frequently fluctuated, especially for highly sought-after products, and at a time when they faced supply chain difficulties.
Assessment
1. Upheld
The ASA considered that consumers would understand the claims “Last purchased 1 minute ago” and “Purchased 24 times since your last visit” to be accurate representations of the sales history of the product in question. We noted that the Xbox Series X Console was a product which was in high demand at the time the ad was seen, and that stock levels across the UK were limited. We therefore considered that a retailer who listed such an item as being in stock would expect to see an increase in attempted purchases because of the mixture of its scarcity and popularity.
We acknowledged Argos’s comment that 172 consoles had been sold on the day the complainant saw the messages concerning its recent sales history, and that availability had depended on a consumer’s location. Argos did not, however, provide any evidence to substantiate the claim seen by the complainant that a console had been sold within a minute of when they had seen the ad, nor 24 times since their last visit.
We noted that Argos had received Primary Authority Assured Advice on the wording of the on-screen messages outlined in the complaint. The advice stated that they should avoid using the word “purchased”, and instead use language which reflected the number of orders received. We understood Argos had accepted that using the word “purchased” could have been deemed misleading, since not all orders placed on the website had resulted in completed transactions, and had previously amended their website in line with that advice. However, we understood that during operational changes the wording had accidently reverted back to “purchased”, instead of “ordered”. We noted, therefore, that the wording of the pop-up messages was not in line with the provided Assured Advice. In any case, the advice did not relate specifically to the claims investigated, since they were specific to the point at which the complainant had seen the ad, and the exact numbers and times of recent sales.
Because Argos had not been able to substantiate the claims about recent purchases stated in the ad, we concluded that the ad was misleading and breached the Code.
On that point, the ad breached CAP Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
2. Upheld
The CAP Code required marketers to state any reasonable grounds they had 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, the Code required that if estimated demand exceeded supply, marketing communications must make clear that stock was limited. We considered that, in the absence of a qualification, consumes would understand from the ad that the product was in stock.
We acknowledged Argos’s comment that the products in question had not completely gone out of stock at the time the ads were seen, but had only limited availability, which they said had been addressed by a badge stating such. However, we noted that the product page the complainant saw only stated that the product was in stock, and that they had, over the course of a week, entered multiple different postcodes on the website - relating to various geographical locations – in an attempt to find a console they could either purchase online or collect from a store. The complainant was unable to find any available consoles to purchase, despite that extended search. We therefore considered that the ad should have made sufficiently clear that the availability of the product was extremely limited, and was restricted to certain locations.
We considered that the evidence provided was not enough to demonstrate that the product featured was widely available to purchase, or that Argos had communicated to consumers that they might not be able to supply the product within a reasonable period and in reasonable quantities. In the absence of such evidence, we concluded that the ad was misleading and breached the Code.
On that point, the ad breached CAP Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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), and 3.28 3.28 Marketing communications that quote a price for a featured product must state any reasonable grounds the marketer has for believing that it 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 3.28.1 3.28.1 if estimated demand exceeds supply, marketing communications must make clear that stock is limited (Availability).
Action
The ads 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, and that their website accurately portrayed the availability of products in the future.
