Background
Summary of Council decision:
Two issues were investigated, both of which were Not upheld.
Ad description
A TV ad and a national press ad, which showed a promotional price for whole fresh salmon:
a. The TV ad compared the promotional price with prices at two other supermarkets. It included the on-screen text "Selected stores & availability ...".
b. The national press ad was headed "Make your Easter taste amazing" and included the small print "Selected stores. Available while stocks last ...".
Issue
The ASA received two complaints.
1. Both complainants challenged whether ad (a) was misleading, because they believed the advertiser had not made a reasonable estimate of demand for the product.
2. One of the complainants also challenged whether ad (b) was misleading for the same reason.
Response
1. & 2. ASDA Stores Ltd t/a ASDA said they had made a thorough forecast of demand, based on the price of the product and the scale of advertising, as well as taking into account sales and waste during other promotional periods, which included both Easter and Christmas 2014. The price of whole salmon during the Christmas 2014 promotion had been £4 per kg and there had been a strong advertising campaign, with a much higher volume of mixed media coverage than for the Easter 2015 promotion. While the price, the scale of advertising and sales data from Easter and Christmas 2014 were taken into account, emphasis was placed on the sales data from Easter 2014 when estimating stock levels. The previous Easter promotion was seen as a more reliable predictor, because sales of whole salmon were historically much higher at Christmas than Easter. Demand had been overestimated during the Easter 2014 promotion, for which there was no TV advertising. However, it was recognised that the TV and press advertising for Easter 2015 was likely to increase demand and a potential uplift in sales was therefore forecasted, with a corresponding significant increase in stock levels. The price of the salmon at Easter 2014 was £5 per kg. ASDA recognised that the estimate of demand was particularly important given the nature of the product and the associated limitations in obtaining additional supply at short notice.
Sales data from Christmas 2014 had also been taken into account in estimating likely demand for individual stores. Levels were monitored daily on a store-by-store basis and additional stock was redirected from stores with excess whole salmon if a problem with availability was identified. Each store received a daily delivery and could also order additional stock if necessary. While ASDA believed the overall estimate of demand had been appropriate, demand was higher than anticipated in some stores. Year-on-year sales were significantly higher in the north of England, albeit starting from a lower base, whereas there was higher reported waste in the south. They believed demand was also likely to have been driven by their competitors' prices, which were higher than their own for Easter 2015 whereas at Christmas 2014, when demand had been overestimated, competitors' prices had been more in line with ASDA's. Competitors' prices could not have been known at the time demand was forecasted and were only added to the TV ad immediately before it was aired, to ensure the most up-to-date information was included.
ASDA said the specific stores the complainants had visited (six in total) had, aside from two, experienced an overall uplift in demand that could not have been predicted via historical data and forecasting. In one of those cases, additional stock had been received from other stores. In another store, there was also an increase in demand. However, there had been consistent availability, aside from the day on which the complainant had visited when the salmon sold out despite having received a delivery in the morning. Finally, a newer store, for which there was less historical data available, experienced a relatively smaller increase in demand. The promotion was less successful at that store and as such there had been wastage. However, its overall availability was strong. Sales there had been more encouraging on the day of the complainant's visit, but ASDA believed stock had sold out before he arrived.
They said the TV ad ran for only seven days, with the press ad appearing for two, and both stated "available while stocks last" to account for circumstances where demand was higher than had been anticipated. Three days into the TV advertising, it was still believed that stock levels were sufficient to meet demand and so it was not considered necessary to discontinue the advertising in certain areas. By the time sales data indicated that demand was not being met in all areas, the TV advertising was coming to an end. While some stores were out of stock on particular days, ASDA believed they had made every effort to estimate demand and manage stock levels effectively.
Clearcast said they received confirmation at script stage that ASDA would ensure there was sufficient stock to meet anticipated demand and that they would pull the ad if the product sold out.
Assessment
1. & 2. Not upheld
The ASA understood that estimated demand was based on a previous promotion on the same product which had taken place the previous year, also over Easter, and that data from another similar promotion had also been taken into account. While the previous promotions differed either on price, to a degree, or on the volume of advertising associated with them, we considered they served as a reasonable basis on which to estimate demand, when the advertising planned for the Easter 2015 promotion was also taken into account. We agreed that the higher competitor prices which featured in the TV ad were also likely to have played a role in increasing demand, and noted that some stores in the north of England, including those visited by the complainants, had experienced higher than predicted demand. However, we also noted that demand had been lower than expected in some parts of southern England and that ASDA had taken steps to monitor and redistribute stock. While we noted ASDA's predictions had not been accurate in all cases, and acknowledged the complainants' disappointment, we considered they had made a reasonable estimate of demand and therefore concluded that the ads were not misleading.
We investigated ad (a) under BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising) and 3.28 3.28 Broadcasters must be satisfied that advertisers have made a reasonable estimate of demand. (Availability), and ad (b) under CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.27 3.27 Marketers must make a reasonable estimate of demand for advertised products. (Availability) and 8.9 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. and 8.10 8.10 Promoters must be able to demonstrate that they have made a reasonable estimate of the likely response and either that they were capable of meeting that response or that consumers had sufficient information, presented clearly and in a timely fashion, to make an informed decision on whether or not to participate - for example regarding any limitation on availability and the likely demand. (Sales promotions), but did not find them in breach.
Action
No further action necessary.
