Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two ads for the online fashion retailer, Boohoo, seen in November 2019:
a. An email featured a headline which stated, “UP TO 60% OFF EVERYTHING* + AN EXTRA 10% OFF DRESSES, TOPS AND JUMPSUITS**”. Smaller text below stated, “USE CODE: PARTY10 ENDS MIDNIGHT”. The corresponding asterisk stated, “*Up to 60% off everything is automatically applied and applicable to selected lines only. Limited time only. ** Use code PARTY10 for an extra 10% off dresses, tops & jumpsuits. Excluding sale and applicable to selected lines only. Ends midnight 04.11.2019”.
b. The Boohoo home page displayed a headline which stated “UP TO 75% OFF ABSOLUTELY EVERYTHING + AN EXTRA 10% OFF! CODE: EXTRA. ENDS 10PM”. There was a banner at the top of the page which stated, “FREE NEXT DAY DELIVERY ENDS IN: 00:50:45”. At 10pm the Boohoo home page displayed the headline, “UP TO 75% OFF ABSOLUTELY EVERYTHING + AN EXTRA 10% OFF! CODE: EXTRA. ENDS 11PM”. There was another banner at the top of the page which stated, “FREE DELIVERY ENDS IN: 00:59:17”.
Issue
The ASA received six complaints:
1. Two complainants, who understood that the claim “up to 60% off everything” in ad (a) only applied to selected items, challenged whether the claim was misleading.
2. Four complainants, who understood that the offers reset after the countdown clock reached zero, challenged whether ad (b) misleadingly implied “UP TO 75% OFF ABSOLUTELY EVERYTHING + AN EXTRA 10% OFF!” would revert to the higher price once the countdown was over.
Response
1. Boohoo.com UK Ltd t/a Boohoo stated that the asterisk corresponded with text below which explained that the discount excluded certain lines. Boohoo believed that qualification made it clear to the consumer that the excluded products were items that were typically excluded from all promotions they offered. Boohoo stated that the product lines that were excluded from the discount comprised less than 4% of our products.
2. Boohoo acknowledged that the use of a countdown clock was a mistaken use of the format. They stated that following an internal review they would not use countdown clocks in ads unless the offer varied on their expiry.
Assessment
1. Upheld
The ASA considered consumers would understand the claim “up to 60% off everything” to mean that all products on the Boohoo site were included in the promotion, whereby all products would be discounted, with a significant proportion of products being sold with a 60% discount.
We acknowledged the presence of an asterisk after the claim and the corresponding text below which stated “Excluding sale and applicable to selected lines only” but considered that it was not sufficient to counter the overriding impression of the ad that all products would be discounted. However, we understood that 4% of lines were excluded from the promotion. As such, because consumers were likely to interpret the claim “up to 60% off everything” as applying to all Boohoo products when in fact 4% of lines were excluded, we concluded that the ad was misleading.
The ad 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 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification).
2. Upheld
The ad featured a ticking countdown clock that appeared to be counting down to zero. We considered that consumers would understand from the claim “FREE NEXT DAY DELIVERY ENDS IN: 00:50:45” to mean that if they purchased any product within the time period, the product would be delivered the following day for free, whereas if they purchased the product after the clock reached zero, they would have to pay for next day delivery at Boohoo’s usual price. We also considered that consumers would further understand the claim “UP TO 75% OFF ABSOLUTELY EVERYTHING + AN EXTRA 10% OFF! CODE: EXTRA. ENDS 10PM” to mean that all products purchased before 10:00 pm would be subject to a 75% discount, whereas products purchased after 10:00 pm would not receive the discount. We understood, however, that the once the countdown clock reached zero, it reset to repeat the same free next day delivery offer with a new countdown clock counting down to zero. We understood that re-occurred at every hour throughout the day.
Likewise, the “up to 75% offer” also reset at the end of each hour with the same offer alongside a claim that the promotion finishes at the end of the hour. We considered that consumers were likely to regard the offer as a time limited promotion and expect it to expire at the end of the countdown clock. The countdown clock was therefore likely to pressurise consumers into making swift transactional decisions, including purchasing the product, without giving their purchase the due consideration they normally would because of the misleading implication in the ad that the offer would run out at the end of the time period. Because consumers would expect the offer of free next day delivery to end and the 75% discount price to revert to the usual price after the countdown clock ended, when in actual fact it reset at the end of each hour meaning that the promotions were not actually time limited, we concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising),
8.2
8.2
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
8.17
8.17
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
and
8.17
8.17
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:
4.E (Promotional marketing).
Action
The ads must not appear again in their current form. We told Boohoo.com UK Ltd t/a Boohoo not to imply that all products were included in an offer if products were excluded. We told Boohoo.com UK Ltd t/a Boohoo to ensure that their future advertising did not misleadingly imply that discount offers were time-limited, for example by using a countdown clock, if that was not the case.
CAP Code (Edition 12)
8.2 8.17 8.17.1 3.10 3.9 8.17.4.E 3.1 3.3 3.7 3.17
