Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Four email ads, two website ads and two TV ads, for Better Bathrooms:
a. An email sent 20 December 2016 stated “70% OFF + A Further 10% OFF Early Bird Sale!” in the Subject line, and “EARLY BIRD SALE UP TO 70% OFF PLUS A FURTHER 10% OFF ALL SALE ITEMS APPLIED AT CHECKOUT” in the body of the email. Nine products were featured under the heading “EARLY BIRDS SALE HIGHLIGHTS”. Under each product image, text stated “£[XXX.XX] EARLY BIRD PRICE”, followed by two prices which were crossed out and the claim “SAVE £[XX.XX]”.
b. A banner on Better Bathroom’s website home page www.betterbathrooms.com, seen on 21 December 2016, stated “EARLY BIRD SALE NOW ON UP TO 70% OFF PLUS A FURTHER 10% OFF ALL SALE ITEMS APPLIED AT CHECKOUT FOR A LIMITED TIME ONLY”.
c. An email sent 23 December 2016 stated “Extra 10% OFF Sale Prices Early Bird Sale! In the Subject line, and “EARLY BIRD SALE UP TO 70% OFF PLUS A FURTHER 10% OFF SALE ITEMS APPLIED AT CHECKOUT” in the body of the email. Nine products were featured under the heading “PLUS A FURTHER 10% OFF APPLIED AT CHECKOUT”. Under each product image text stated “sale price £[XXX] was £[XXX] saving you £[XXX] + EXTRA 10% OFF AT CHECKOUT”.
d. The first TV ad, seen on 23 December 2016, featured a voice-over which stated “The Better Bathrooms January sale has up to 70% off”. On-screen text at the end of the ad stated “JANUARY SALE NOW ON EARLY BIRD OFFER EXTRA 10% OFF”.
e. An email sent 28 December 2016 stated “*EARLY BIRD SALE* Save More! Go Go Go!” in the Subject line, and “EARLY BIRD SALE UP TO 70% OFF PLUS A FURTHER 10% OFF SALE ITEMS APPLIED AT CHECKOUT” in the body of the email. Nine products were featured in the same format as that in ad (c).
f. An email sent 30 December 2016 stated “Early Bird Sale save 70% off + EXTRA 10%!”” in the Subject line, and “EARLY BIRD SALE UP TO 70% OFF PLUS A FURTHER 10% OFF SALE ITEMS APPLIED AT CHECKOUT” in the body of the email. Nine products were featured in the same format as that in ads (c) and (e).
g. A banner on Better Bathroom’s website home page, seen on 24 January 2017, stated “BETTER THAN EVER Sale MUST END 31ST JANUARY UP TO 70% OFF PLUS UP TO A FURTHER 10% OFF on selected products applied at checkout”.
h. The second TV ad, seen in late January 2017, featured a voice-over which stated “There’s up to 70% off everything … It’s our better than ever Better Bathrooms sale ... Sale must end on the 31st of January”.
Issue
Victoria Plum Ltd challenged whether:
1. the claim “Up to 70% off” in ads (a) to (h) was misleading and could be substantiated, because they understood that only a few products were discounted by 70%; and
2. the claim “Sale must end on the 31st of January” in ads (g) and (h) was misleading, because the sale was extended into February 2017.
Response
1. Better Bathrooms UK Ltd (Better Bathrooms) initially said the ‘Early Bird Sale’ included 1,172 products, of which 119 were available at the advertised discount of up to 70%; 10.15% of the products had therefore been on sale at 70% off. They later stated that this calculation was inaccurate because it referred to products that were not included in the sale. In fact, 1,118 products were on sale, of which 12.52% were discounted by at least 70%. They provided a spreadsheet with a full listing of all the products included in the sale. They added that in every ad for the sale that showed a selection of the sale items, at least 10% of the products featured were discounted by the full 70%.
Better Bathrooms considered that the sale was in line with guidance in the 2010 BIS Pricing Practices Guide, that claims such as “up to X% off” should not be used unless the maximum reduction quoted applied to at least 10% of the range of products on offer at the commencement of the sale. They noted that the guidance had been superseded by the Chartered Trading Standard Institute’s (CTSI) Guidance for Traders on Pricing Practices, published on 7 December 2016, which stated that traders should only make claims such as “up to 50% off” if the maximum reduction quoted applied to a significant proportion of the range of products that were included in the promotion. However, they highlighted that it had been agreed with BEIS that businesses would be given until April 2017 to adjust to the new guidance.
Clearcast said that during the clearance process for the ad they received a written assurance from Better Bathrooms that at least 10% of the sale stock would be reduced by the full 70%. They considered the spreadsheet supplied by Better Bathrooms substantiated the claim.
2. Better Bathrooms said the sale was extended as a last minute decision on 1 February, due to a higher than expected demand during January. Despite their best efforts to predict the demand for their January sale they felt that to not extend it would be detrimental to consumers who wished to participate but had been unable to do so. They said the extension of the sale was not pre-planned and was not promoted in any form of broadcast media.
Better Bathrooms did not think that consumers who had made sale purchases in January had been misled or disadvantaged by the extension of the sale. It had been extended to allow more consumers to participate in the offers available, and the offers were the same. They did not think consumers were forced into a rushed purchase by the fear of losing out. The sale was active for a substantial period of time to allow consumers the time to make a considered purchase.
Better Bathrooms said the campaign ran for over five weeks and there had been no undue emphasis on the original closing date of the promotion in TV ads. The closing date was stated in on-screen text in the end frame of the ad, but did not feature in the voice-over.
Assessment
1. Upheld
Ads (a) to (g) advertised an “up to 70% off” sale (the “January sale”). The ASA considered consumers would understand those claims to mean that a significant proportion of the items included in the sale would be discounted by 70%. Ad (h) stated “There’s up to 70% off everything”, which we considered consumers would understand to mean that all products sold by Better Bathrooms were included in the sale, and that a significant proportion of them would be discounted by 70%.
We further considered that where a general “up to 70% off” claim was made (as in ads (b) and (g) which did not feature any specific products), consumers would expect the “up to 70% off” claim to represent the true overall picture of the sale. In other words, that products which were discounted, including those discounted by 70%, would be distributed across all price ranges. The remaining ads all featured specific products which were discounted. In that context we considered consumers would expect that the products featured would represent the overall picture of the sale. In other words, that the products would reflect the level of discounts applied to products across all price ranges.
In addition to the “up to 70% off” claims, ads (a) to (g) referenced a further 10% off which would be applied at the checkout (the “Early Bird discount”). Better Bathrooms had stated that 12.52% of the 1,118 products included in the sale were discounted by 70%. However, we understood from the data provided that those figures were calculated by referring to products to which the Early Bird discount was applied. We considered that additional discount was not relevant to the “up to 70% off” claims in the ads.
We noted that a large number of products in the January sale were excluded from the additional Early Bird discount and as a result Better Bathrooms’ calculations did not relate specifically to the “up to 70% off” January sale. Also we noted that the number of products in the January sale was 1,471, of which 127 were discounted by 70%; that amounted to 8.63% of the products in the January sale. This did not meet the threshold of 10% of sale products referred to in the 2010 BIS Pricing Practices Guide. We further considered that it did not amount to a significant proportion of the items included in the sale as referred to in the new CTSI Guidance for Traders on Pricing Practices. We concluded that the claim “up to 70% off” was misleading on that basis. Additionally, we understood that not all products sold by Better Bathrooms were included in the January sale, and therefore considered that the claim “There’s up to 70% off everything” in ad (h) was misleading.
With regard to the distribution of sale products across all price ranges, the data showed that in relation to the pre-sale prices, 29% of the products included in the sale cost less than £50; 22% cost between £50 and £100; 23% cost between £100 and £200; 12% cost between £200 and £300; and the remaining 14% of products were priced from £300 up to over £4,000. The proportion of products that were discounted by 70% fell disproportionately in cheaper price ranges: 69% of products discounted by 70% cost less than £50; 12% cost between £50 and £100; 9% cost between £100 and £200; 1% cost between £200 and £300; and the remaining 9% of products discounted by 70% were priced from £300 up to £900 (no products over £900 were discounted by 70%).
Because the overall distribution of discounted products fell disproportionately in cheaper price ranges, and the distribution of products discounted by 70% also fell disproportionately in cheaper price ranges, we concluded ads (b) and (g) were likely to mislead consumers. We also noted that in the ads which featured specific products the distribution of those products across price ranges also was not reflective of the level of discounts applied to products across all price ranges. We therefore concluded the remaining ads were also likely to mislead consumers.
We further considered that consumers would understand from the references to the Early Bird discount in ads (a) to (g) that the price of products in the January sale would be reduced by a further 10% off the pre-sale price (i.e. that an item discounted by 70% in the January sale would be discounted by a total of 80% when the Early Bird discount was applied). However, we understood from the data provided that this was not the case; rather, the additional 10% off was calculated from the January sale price (i.e. an item discounted by 70% in the January sale would actually be discounted by a total of 73% when the Early Bird discount was applied). We considered consumers were therefore also likely to be misled by those claims.
Because the substantiation did not show that a significant proportion of sale items were discounted by 70%, that all products sold by Better Bathrooms were on sale as stated in ad (h), or that the claim “up to 70% off” represented the true overall picture of the sale, we concluded the ads were misleading and in breach of the Codes.
On this point ads (a), (b), (c), (e), (f) and (g) breached CAP Code (Edition 12) 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 3.22 3.22 Price claims such as "up to" and "from" must not exaggerate the availability or amount of benefits likely to be obtained by the consumer. (Prices).
Ads (d) and (h) breached BCAP Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.9 (Substantiation) and 3.24 (Prices).
2. Upheld
We considered consumers were likely to understand from ads (g) and (h) that the “up to 70% off” sale would end on 31 January and they would therefore need to make a purchase before that date in order to take advantage of the sale. We noted, however, that the sale was extended into February.
The CAP Code stated that closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter made it necessary and either not to change the date would be unfair to those who sought to participate within the original terms, or those who sought to participate within the original terms would not be disadvantaged by the change. The BCAP Code required that ads must not be materially misleading.
Better Bathrooms believed that because the sale had been active for a substantial period of time – five weeks – consumers would not have been rushed into a purchase. We acknowledged the sale had run for a substantial period of time, but noted that of the eight ads seen by the complainant, only ads (g) and (h), which were seen in late January, included an end date for the sale. We noted that the banner ad seen on Better Bathrooms’ website on 21 December 2016 (ad (b)) did not reference the end date of the sale, whereas the banner ad seen on 24 January (ad (g)), did. We also understood that five different TV ads for the sale had run between 1 December 2016 and 31 January 2017, but the only two which had included a reference to the end date of the sale were not broadcast until 20 and 21 January. We therefore understood that Better Bathrooms had not featured the end date in their ads until the last ten days of the sale.
We considered that consumers who saw ads (g) and (h) may have hurried into participating in the promotion believing that it was only running for a short time longer when they could have delayed taking part until a more convenient time, and may have been disadvantaged as a result. We therefore concluded the promotion was misleading and in breach of the Codes.
On this point, ad (g) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 8.17.4.e 8.17.4.e Closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter make it necessary and either not to change the date would be unfair to those who sought to participate within the original terms, or those who sought to participate within the original terms will not be disadvantaged by the change. (Significant conditions for promotions), and ad (h) breached BCAP Code rule 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
Action
The ads must not appear again in their current form. We told Better Bathrooms UK Ltd that when making “up to X% off” claims they should ensure that a significant proportion of sale items were discounted by the stated percentage, and that such claims represented the true overall picture of the sale. We also told them to ensure closing dates of promotions were not extended unless unavoidable circumstances beyond their control made it necessary and either not to change the date would be unfair to those who sought to participate within the original terms, or those who sought to participate within the original terms would not be disadvantaged by the change.
