Ad description
A website selling computer games and equipment, www.gameseek.co.uk, seen in August 2017, featured various products offered at reduced prices on a 'Cyclonic Deals' page. The particular deals were:
1. 'Sea of Thieves' for Xbox One computer game. The listing featured a countdown clock and text stating "Stock is limited, buy now! Was 38.98. Savings: £13.98 (36%). £25.00. Only a limited amount of stock available!".
2. 'Splatoon 2' for Nintendo Switch computer game. Text stated "Stock is limited, buy now! Was 42.55. Savings: £12.55 (30%). £30.00" Only a limited amount of stock available!".
3. 'Anthem' for Xbox One computer game. Text stated "Stock is limited, buy now! Was 42.75. Savings: £12.75 (30%). £30.00" Only a limited amount of stock available!".
4. Playstation 4 Console Slim 500GB (Black D Chassis). Text stated "Stock is limited, buy now! Was 209.50. Savings: £11.00 (6%). £198.50. Only a limited amount of stock available".
5. 'Pokken Tournament DX' computer game. The product was advertised at the reduced price of £25.00.
Issue
Four complainants challenged the availability of the products at the advertised prices.
Response
Gameseek Ltd did not believe their deals had breached the Code. They explained that they only allocated a certain limited amount of stock per deal and that hundreds of customers had been trying to obtain each deal. They said demand had been very high for some products and because the stock available was limited, this meant that on most of the deals referred to by the complainants customers had unfortunately got to the deals a fraction too late.
Assessment
This Ruling replaces that published on 6 December 2017. The wording of the Assessment has changed but the decision to uphold the complaint remains.
Upheld
The CAP Code required that promoters must be able to demonstrate that they had made a reasonable estimate of the likely response to a promotion. The Code also required them to show they were capable of meeting the likely response or consumers had sufficient information, presented clearly and in a timely fashion, to make an informed decision on whether or not to participate - for example, regarding any limitation on availability and the likely demand.
The ASA noted Gameseek Ltd had not made an estimate of the likely response to its promotions prior to the Cyclonic deals going live. We understood the available stock for each of the Cyclonic deals was limited and the number of customers who had tried to purchase the items exceeded the number of items available. We had not seen documentary evidence showing the exact number of items available and the number of customers who had tried to purchase each item, although we noted Gameseek's comment that in some cases there were hundreds of customers attempting to purchase the items. We therefore considered Gameseek to not have been capable of meeting the likely demand for the products.
Whilst we noted the text in the ad stated "Stock is limited, buy now" and "Only a limited amount of stock available", we did not consider those phrases sufficient to convey to consumers the limited number of items available and, in any event, we considered those phrases did not relieve the advertiser of the obligation to take all reasonable steps to avoid disappointing consumers. We concluded that because Gameseek Ltd had not made a reasonable estimate of the likely demand for the products featured in their Cyclonic deals, with a view to avoiding disappointing consumers, and had not provided consumers with sufficient information, presented clearly and in a timely fashion, for them to make an informed decision on whether or not to participate, the promotions had breached the Code.
The ad breached CAP Code (Edition 12) rules 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. (Promotional marketing), 8.9 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. and 8.10 8.10 Promoters must be able to demonstrate that they have made a reasonable estimate of the likely response and either that they were capable of meeting that response or that consumers had sufficient information, presented clearly and in a timely fashion, to make an informed decision on whether or not to participate - for example regarding any limitation on availability and the likely demand. (Availability).
Action
The ad must not appear again in its current form. We told Gameseek Ltd to ensure that in future it made a reasonable estimate of likely demand for the products in its Cyclonic deals, and that consumers had sufficient information, presented clearly and in a timely fashion, for them to make an informed decision on whether or not to participate.
