Background
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Ad description
Pages on Emma Mattress’ website www.emma-sleep.co.uk, and a London Underground poster:
a. A product page on the website, seen on 27 September 2021, advertised an Emma Premium Mattress UK King Size for £637.45. Text above the selling price stated “45% savings” and “From £1,159.00”. The price “£1,159.00” had been crossed out, with a line through it.
b. A further product page, seen on 12 November 2021, advertised an Emma Luxe Mattress UK Double for £1,039.35. Text above the selling price stated “39% savings” and “From: £1,728.00”. The price “£1,728.00” had been crossed out, with a line through it.
c. The website homepage, seen 18 October 2021, stated “FLASH SALE UP TO 50% OFF”, accompanied by a countdown clock.
d. The London Underground poster, seen on 10 November 2021, featured text which stated “EMMA’S BIGGEST EVER SALE BLACK FRIDAY UP TO 50% OFF”.
Issue
The ASA received three complaints.
1. Eve Sleep Plc and two members of the public, who understood the “From” price in ad (a) had been increased, challenged whether the savings claim was misleading.
2. A member of the public, who understood the product in ad (b) was a new release, challenged whether the ad complied with the Code.
3. Eve Sleep challenged whether the use of the countdown clock in ad (c) misleadingly implied that the sales promotion was time limited, because they understood that the same discount offer would restart shortly after the countdown ended.
4. Eve Sleep challenged whether the claim “BLACK FRIDAY UP TO 50% OFF” in ad (d) was misleading.
Response
1. Emma Matratzen GmbH t/a Emma provided a pricing history covering a seven-month period, from when the product launched in March 2021, including the period for which the promotion referenced in ad (a) ran. It showed the reference price for the product (the price referred to as the “From” price in the ad), whether the product was on promotion, and when on promotion the percentage discount that had been applied to the reference price during that period. The promotions were divided up into those that applied to either new customers or all customers. Emma said their pricing history demonstrated that the savings claim represented a genuine saving against the usual selling price of the product.
They said they had been careful to ensure that the advertised product had not been on a promotional offer unduly frequently. During the seven-month period for which they provided the pricing history, for 52% of this time, the product had either not been on promotion or had only been on promotion to a limited group of consumers.
The reference price had fluctuated over the seven-month period, ranging from £1,059 to £1,229. They said the reference price changed throughout this period because their supplier had increased their prices due to an increase in their own production costs. Emma said it was no longer feasible for them to continue selling the product at the previous reference price and therefore increased it to £1,159 on 21 September 2021.
Emma said that over the seven-month period they had sold 15,392 units; 2,634 of those had been sold at the reference price applicable at the time.
2. They said the ad stated “pre-sale”. They considered this would indicate to consumers that the product was new to the market. However, they accepted that the ad should have been clearer in explaining that it was an introductory offer. They said the ad, unfortunately, went live without the content making clear that it was an introductory offer. They said they had removed the product and ad from the website.
3. They said the “Flash Sale”, which offered a discount of up to 50% off for all customers, ended at midnight on 18 October 2021. The sale which immediately followed on 19 October 2021 did not offer a discount of up to 50% off, and was only available to new customers.
4. They said the Black Friday sale ran from 15 to 29 November 2021. In their opinion, the presentation of the ad was not misleading because it prominently stated that it was a Black Friday sale. It did not state that the sale had already started. They considered that the average consumer would understand from the ad that Emma would be running a promotion for the Black Friday weekend, and not that the sale was taking place at the time the ad was seen. However, they said they would ensure that their future ads referenced the start date of a sale.
Assessment
1. Upheld
The ASA considered that consumers would understand the crossed out “From” price of £1,159 (the reference price) as being a “was” price, i.e. the usual selling price that the King size Premium Emma mattress was sold at, and would expect the lower price to represent a genuine saving against that price.
We assessed the sales data provided by Emma. It showed that the reference price of the King Premium Mattress had fluctuated throughout the seven-month period. The reference price of the mattress was initially £1,099 for 41 days, at £1,299 for a further 21 days and at £1,059 for 132 days, before changing to £1,159 on 21 September 2021.
However, we noted that the item had been on promotion (to either all or new customers) since the reference price had increased to £1,159. Furthermore, for 49 consecutive days immediately prior to the reference price being raised to £1,159, the mattress had been on promotion to either new or all customers. We therefore considered Emma had not demonstrated that the reference price of £1,159 stated in the ad was the usual selling price of the product.
We also considered Emma’s pricing practices as a whole for the seven-month period. We noted that throughout the period (224 days in total), the item had only been priced at the reference price for all customers on 68 days in total. We further noted that over the seven-month period only 17% of units had been sold at the reference price. Because the product had not been priced at the reference price for significantly longer than it had been on promotion, and only 17% of units had been sold at the reference price, we considered that Emma had not demonstrated that their reference prices were the usual selling prices of the product.
Therefore, because we had not seen evidence that the savings claim represented a genuine saving against the usual selling price of the product, we concluded the savings claim was misleading.
On that point, ad (a) 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 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. (Prices).
2. Upheld
We considered consumers would understand the price of the Double Luxe Mattress was reduced by 39% to £1,039.35. The “From” price of £1,728, which was scored out, therefore indicated the reference or “was” price, i.e. the usual selling price of the mattress.
We understood that Emma intended the offer to be an introductory offer. The Code allowed for the use of introductory offers as long as it was clear that the lower price was an introductory price rather than a discount against the usual selling price. The claim “Pre-sale” was not stated on the product page. We considered that even if it had appeared earlier in the consumer journey, before reaching the product page this would not have been sufficient to make clear to consumers that it was an introductory offer. We therefore considered that it was not clear from the ad that it was an introductory offer.
Because we had not seen any evidence to demonstrate the higher price represented the price at which the mattress was usually sold, we concluded that the ad was misleading.
On that point, ad (b) 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 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. (Prices).
3. Upheld
The ad featured boxes displaying ‘Days’, ‘Hours’, ‘Minutes’ and ‘Seconds’ that appeared to be counting down to zero. We considered that consumers would understand the claims “FLASH SALE” and “UP TO 50% OFF” to mean that Emma were offering up to 50% off their products for a short period of time and that once the countdown clock reached zero the same products would return to their usual price. We considered the phrase “FLASH SALE” reinforced the impression that the sale was time-limited.
We understood, however, that immediately after the “FLASH SALE” ended a sale for new customers started.
The countdown clock was therefore likely to pressurise consumers into making a swift transactional decision, including purchasing products, 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 up to 50% off to end and to revert to the usual price after the countdown ended, when in fact another sale started immediately, the promotion was not actually time-limited.
We therefore concluded that the ad was misleading.On that point, ad (c) 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 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. (Promotional marketing).
4. Upheld
We considered consumers would understand from the ad that Emma were running a promotion during the Black Friday period where they could save up to 50% on products. We understood that whilst Black Friday referred to a specific day in the year, many retailers ran Black Friday” promotions which lasted for several days or weeks around that time. We therefore considered that it was not unreasonable for a consumer to think the promotion would be running at the time the ad was seen, even if this was before Black Friday. In this case the ad was seen on 10 November 2021, but Emma’s Black Friday promotion lasted from 15 to 29 November. We therefore considered that the start and end date of the promotion was significant information which should have been included in the ad.
Because the ad did not provide consumers with significant information that was likely to influence their decision to take up the offer, we concluded that ad (d) breached the Code.
On that point, ad (d) 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)
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:
8.17.3
8.17.3
Start date
The start date, if applicable
8.17.4.a
8.17.4.a
A prominent closing date, if applicable, for purchases and submissions of entries or claims. Closing dates are not always necessary, for example: comparisons that refer to a special offer (whether the promoter's previous offer or a competitor's offer) if the offer is and is stated to be "subject to availability"; promotions limited only by the availability of promotional packs (gifts with a purchase, extra-volume packs and reduced-price packs) and loyalty schemes run on an open-ended basis
d
8.17.4.a
8.17.4.a
A prominent closing date, if applicable, for purchases and submissions of entries or claims. Closing dates are not always necessary, for example: comparisons that refer to a special offer (whether the promoter's previous offer or a competitor's offer) if the offer is and is stated to be "subject to availability"; promotions limited only by the availability of promotional packs (gifts with a purchase, extra-volume packs and reduced-price packs) and loyalty schemes run on an open-ended basis
(Significant conditions for promotions).
Action
The ads must not appear again in the forms complained about. We told Emma Matratzen GmbH t/a Emma to ensure their future savings claims did not mislead and to ensure they substantiated savings claims against the usual selling price of their products. We also told them to ensure their introductory offers made clear that the lower price was an introductory price and not a discount against the usual selling price; their ads did not misleadingly imply that discount offers were time-limited, for example by using a countdown clock, if that was not the case; and that significant information about offers, such as the start and end date, was made clear in ads.
CAP Code (Edition 12)
3.1 3.7 3.17 8.17 8.17.3 8.17.4 8.17.4.E 8.17.4.A
