Background
Summary of Council decision:
Two issues were investigated, one of which was Upheld. The other was informally resolved after the advertiser agreed to amend their advertising.
Ad description
Banner ads and pages on Carpetright’s website, seen in January and February 2022:
a. A banner ad, seen on 1 February 2022 at 18:37, stated “up to half price sale on a choice of carpets”.
b. A page on the advertiser’s website, www.carpetright.co.uk, seen on 1 February 2022 at 18:35 stated “up to half price” over images of carpets, wood flooring, vinyl, luxury vinyl (LVT) and laminate.
c. A banner ad, seen on 1 February 2022 at 18:33, featured a scrolling banner that stated “up to half price sale on a choice of floors and beds ends Tuesday [2 Feb]”.
d. A banner ad, seen on 4 February 2022, stated “save big up to 50% off a choice of floors and beds + 20% off a huge range of floors when you buy underlay Use code: BIG20 T&Cs apply”.
e. A page on the advertiser’s website, seen on 9 February 2022 at 15:28, stated “up to 50% off” over the images of carpets, vinyl and laminate, and “up to 20% off” over images of wood flooring and LVT.
f. A banner ad, seen on 9 February 2022 at 15:18, stated “Up to 50% off + extra 20% off when you buy underlay. Use code BIG20 Don’t miss out!” and featured a scrolling banner image that stated “save big up to 50% off a choice of floors and beds + 20% off a huge range of floors when you buy underlay Use code: BIG20”.
g. A banner ad, seen on 20 February 2022 at 16:05, stated “Up to 50% off + extra 20% off when you buy underlay” and featured a scrolling banner image that stated “save big up to 50% off a choice of floors and beds ends Tuesdays + 20% off a huge range of floors when you buy underlay Use code: BIG20”.
h. A page on the advertiser’s website, seen on 15 March 2022 at 17:26, stated “up to 50% off” over an image of carpets and “up to 20% off” over an image of wood flooring.
Issue
Tapi Carpets and Floors Ltd challenged whether the savings claims were misleading because they understood that only a very small proportion of products were available with the advertised discount and the products had not been sold at the higher undiscounted prices.
Response
Carpetright Ltd explained that the promotional period referred to in the ads was 25 January 2022 to 1 February 2022 (week 4), 2 February 2022 to 22 February 2022 (weeks 5–7) and 23 February 2022 to 15 March 2022 (weeks 8-10) (the Promotional Period).
They said there were three main categories of products: beds, hard flooring and soft flooring. Those could be broken down into sub-categories. For beds, the sub-categories were divan, frames and mattresses (Beds). For hard flooring, the sub-categories were vinyl, luxury vinyl tile (LVT), laminate and wood flooring (Hard Flooring). Soft flooring referred to carpets (branded and non-branded) (Soft Flooring).
For each main category of products, they provided data showing the range of products they offered. For each product line within that category, they provided data showing: (i) it’s price, the percentage discount (if any) and the volume sold, for each week of the Promotional Period; (ii) in the last six months (October 2021 to April 2022), the volume sold at the promotional price, the non-promotional price and the percentage that were sold at the non-promotional price; and (iii) the number of weeks the product line had been on promotion in the last six months.
They also provided a summary showing, for each sub-category of product, the total number of product lines they offered, and a breakdown of the number of product lines that were on promotion at a discounted price of 20% off, 25% off, 30% off and 50% off during the Promotional Period, and the percentage of total products sold at a discount during the Promotional Period.
Carpetright asserted that a significant proportion of products were available at the discounted price during the Promotional Period. For each product category, they highlighted the data that they believed demonstrated that. In particular, in relation to Beds, during each week of the promotional period between 38% and 45% of their total ranges were discounted. In relation to Hard Flooring, between 20% and 34% of their total ranges were discounted during the promotional period, and between 28% and 31% of their total ranges in the Soft Flooring category were discounted.
They said the data provided showed that the range of products included in the promotion had been sold at their undiscounted prices outside of the Promotional Period. The undiscounted “was” price was therefore a genuine representation of the price at which the product was usually sold.
Assessment
Upheld
The ASA considered that consumers would understand the advertised savings claims to mean that a significant proportion of products in the categories referred to in the ads would be discounted by the “up to” amounts stated in the ads. We also considered that consumers would expect the maximum discounts referred to in the ads to be evenly distributed across different price ranges of products, and that the higher undiscounted prices genuinely reflected the prices at which the products were usually sold at the time the ads appeared. Furthermore, we considered that consumers would generally expect periods of promotion to be temporary.
We considered that consumers were likely to interpret ads (a) – (d) to mean that the up to half price sale applied to a selection of carpets, wood flooring, vinyl, luxury vinyl (LVT), laminate and beds during the first week of February 2022 (week 4).
We considered that consumers were likely to interpret ad (e) to mean that in the second week of February 2022 (weeks 5-7) a selection of carpets, vinyl and laminate were discounted by up to 50% and a selection of wood flooring and LVT was discounted by up to 20%. However, ad (f), which appeared on the same date as ad (e) (9 February 2022), stated “save up to 50% off a choice of floors and beds” and did not state that wood flooring and LVT was only discounted by up to 20%. We considered therefore that consumers would be likely to interpret ad (f) to mean that all types of flooring, including wood flooring and LVT, were included in the “up to 50% off” sale.
We considered that ad (g) would be likely to be interpreted in the same way as ad (f).
Consumers were likely to interpret ad (h) to mean that at the point of the Promotional Period (week 10) they could achieve up to 50% off carpets and up to 20% of wood flooring.
Some of the ads referred to an additional saving of 20% when underlay was also purchased. We considered that consumers would understand that was a separate offer to the “up to 50%” and “up to 20%” offers.
We first considered whether a significant proportion of products in the categories referred to in the ads were discounted by the “up to” amounts stated in the ads and whether the maximum discounts were evenly distributed across different price ranges of products.
We noted that the figures referred to by Carpetright were the percentage of product lines that were discounted, rather than the percentage of product lines that were discounted by the maximum amount (i.e. “up to 50%” or “up to 20%” respectively). When considering the number of product lines which were discounted by the maximum amount during the promotional period, we noted that the percentages were much smaller. For example, in the Hard Flooring category, between two and nine product lines out of a total of 109 (110 in week 10) were discounted by 50% during the Promotional Period. That amounted to approximately 2–8% of the total product lines in that category.
Certain sub-categories of products had no product lines discounted by 50%, or very few, during the Promotional Period. In particular, no bed frames, branded carpets or roll stock vinyl products were discounted by 50% during the Promotional Period. Only four product lines in the LVT sub-category (out of a total of 22) were discounted by 50% and that was only in week 4 of the Promotional Period – no LVT products were discounted by 50% in weeks 5–10. Only one engineered wood flooring (out of a total of 40) was available at the 50% discount and that was only during week 4 of the promotional period (although we noted that in weeks 8-10 of the Promotional Period the maximum discount for wood flooring was 20%). We therefore considered that Carpetright had been unable to show that for each category/sub-category of products referred to in the ads, the maximum discount had been applied to a significant proportion of products.
We then considered whether the undiscounted prices were a genuine representation of the prices at which the products in the promotion were usually sold, at the time the ads appeared.
We acknowledged that the Chartered Trading Standards Institute’s (CTSI) Guidance for Traders on Pricing Practices (the Guidance) said that promotions were likely to comply with the guidance if the reduced price was charged for the same or less time than the reference price.
The Guidance offered practical advice to traders on the consumer protection laws and associated practices. While we noted that the Guidance provided a set of principles rather than statutory rules, and non-broadcast advertising claims were ultimately assessed under the CAP Code, we took the Guidance into account when making our assessment. The Guidance stated that a practice was more likely to comply if a comparison was made for a period that was the same or shorter than the period during which the higher price was offered. It did not give specific advice on situations where that practice was repeated on a regular basis for the same product.
We considered it was relevant to consider the fluctuations in the context of the consumer understanding set out above, that the higher price would be the usual selling price of the product.
Because the undiscounted prices and the discounted prices generally followed a cyclical pattern, we understood that the lower ‘promotional’ price was not offered for longer than the higher price against which the saving was claimed over a 12-month rolling period. We acknowledged Carpetright’s assertion that they would not allow a product to be on promotion for more than 26 weeks in any rolling 52-week period, but noted from the six months’ sales data provided that there were certain products that had been discounted for more than half that time and so at that particular point in time, those products had been at the discounted price for longer than they had been at the higher price.
Furthermore, we considered that if consumers had been aware of that pattern, they would regard the advertised products as having two distinct prices, neither of which represented the usual selling price. We considered that those fluctuations and the lack of a usual selling price would be likely to affect consumers’ perceptions of the value of the offer, and whether or not the claimed ‘saving’ was genuine.
The Guidance also stated that whether significant sales were made at the higher price should be considered when determining whether the saving was genuine. We therefore had concerns that certain product ranges had not sold any products at the undiscounted prices. In particular, a notable proportion of product lines in the Beds category which were part of the promotion had not been sold at their higher price during the six-month period October 2021 to April 2022.
Because consumers were likely to understand that a significant proportion of products in the categories referred to in the ads would be discounted by the “up to” amounts stated in the ads, and that the advertised savings represented a genuine saving against the usual selling price of the products, when that was not the case, we concluded that the savings claims were misleading.
Ads (a) – (h) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. 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).
Action
The ads must not appear again in the form complained of. We told Carpetright Ltd to ensure that when making savings claims in future, they were able to establish a genuine usual selling price and show that a significant proportion of products had the maximum saving, so as to not mislead consumers.
