Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A TV ad and website for a furniture retailer:
a. The TV ad, seen on 25 December 2015, stated "Enjoy our best ever prices in the best ever DFS winter sale. Right now the Nest corner sofa is just £1395 ...". On-screen text stated "£1395 After event £2995" and "Offer ends 6.1.16".
b. Claims on a sofa product page on www.dfs.co.uk, seen on 27 December 2015, stated "4 Seater Lounger ... Sale Price £799 After Sale Price £899 Save £100 ... After sale price applies from 23/02/2016".
Issue
1. One viewer challenged whether the savings claims in ad (a) and
2. another complainant challenged whether the savings claims in ad (b)
were misleading and could be substantiated.
Response
1. DFS said the ad accurately reflected both the Nest sofa promotion and future price. The sofa was offered at the reduced price of £1395 in all stores and online for 17 days throughout the promotion, after which time the after-sale price of £2995 applied for the following 26 days. They believed that complied with the BIS Pricing Practices Guide (PPG), which stated that an after-event price must be offered for a reasonable period of time after the promotion ended.
DFS said the only price comparison in the ad was with a future price and the ad did not refer to a previous selling price. They did not therefore see the relevance of providing a pricing history for the period before the advertised event or sales figures for the sofa as requested by the ASA.
Clearcast said they saw evidence that the Nest sofa sale price was £1395 and the after-event price would be £2995 and believed the offer complied with the BCAP Code and relevant regulatory requirements.
2. DFS said the ad explained that consumers would save £100 by buying the Freya lounger during the offer period, which was an accurate comparison with the after-sale price. At the time of the complaint, the lounger was on sale at the reduced price of £799 until 22 February when the higher price of £899 applied, which was the price at which they intended to sell the lounger until at least late May 2016.
They said the only price comparison in the ad was to a future price and although they understood that the complainant had seen the sofa on offer for £799 some months before the advertised offer, they knew of no regulatory rule or guidance that stated that a product that had previously been placed on promotion needed to include claims that referred to a previous “was” price.
They provided us with their own consumer research that they believed showed consumers understood the offer and the saving that they would be able to make.
Assessment
1. & 2. Upheld
The ASA considered that consumers would understand the claims “Enjoy our best prices in the best ever DFS winter sale” in ad (a) and “Sale Price” in ad (b) to mean that they would be making a genuine saving against the normal selling prices and, in that context, would expect an after-event claim to be the prices at which the sofas had most recently been sold and to which they would revert at the end of the sale. In particular, the use of “sale” in both ads created the impression that the sofa prices had dropped from the price charged before the event began, rather than being the current selling price. Although we acknowledged that consumers would be able to work out the saving against the price that would be charged when the sale ended, it was unclear whether the after-event price was a saving on the price charged before the sale.
We understood that both sofas had been sold by DFS for some time and the pricing history from DFS for the Freya lounger in ad (b) showed that it had been offered for sale at either £799 or £899 for a roughly equal amount of time at both prices over the previous year. We therefore asked to see sales data for the lounger to establish the price at which it was generally sold and to confirm whether the sale price was a genuine saving on the former price; that information was not provided to us. Other than the price during and after the event, we also saw no pricing history or sales date for the Nest sofa in ad (a). We were therefore unable to determine whether the sale price represented a genuine saving on the former selling prices for either sofa.
We assessed the survey DFS commissioned to look at consumer understanding of after-event promotions. However, although consumers were asked a number of questions as to whether they understood such offers, the survey did not address the issue of whether consumers would expect the quoted sale price to be the price at which the product had previously been sold or whether the after-event price reflected that price.
We understood that DFS intended to offer the sofas at the after-event price for a period of time following the sale end and we acknowledged that the sofas would be more expensive compared to the quoted sale prices. However, because we saw no evidence to establish whether the sale prices were a reduction on the prices at which the sofas were formerly sold and therefore represented a current genuine saving, we concluded that ads (a) and (b) were likely to mislead.
The TV ad (a) breached BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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), 3.18 3.18 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product or service depicted in the advertisement. (Prices) and 3.40 3.40 Price comparisons must not mislead by falsely claiming a price advantage. Comparisons with recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold. (Price comparison).
The website ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements 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), 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Prices) and 3.40 3.40 Price comparisons must not mislead by falsely claiming a price advantage. Comparisons with recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold. (Price comparisons).
Action
The ads must not appear again in their current form. We told DFS Trading Ltd to ensure that they held evidence to show that their savings claims were genuine.
