Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two teleshopping presentations for Gemporia on the Gems TV channel:
a. The first ad, seen on 3 March 2023, featured a presenter from Gemporia describing a pearl necklace. On-screen text stated, “Deal Price £399”. The presenter said “£399 these are South Sea cultured pearls there is no way we should be taking any South Sea strands outside of four figures. I’ve worked in a jewellers before and to put that in a shop window, that would go in at least five, six thousand pounds because of the quality of these South Sea and the size …”.
b. The second ad, seen on 4 March 2023, featured a Gemporia presenter describing a Tanzanite & White Zircon sterling silver ring. On-screen text stated, “Deal Price £199”. The presenter said, “What if I say we can take it under a hundred pounds? […] We’re going to take it under a hundred pounds its brand new, something’s gone wrong there, no wonder everybody’s gone for this.” On-screen text showed the price as “£99.99.” The presenter then said, “There’s sometimes some things just fall through the net … what if I said to you we’re not even stopping there, are you ready? … we can go to £79.99”. On-screen text then stated, “Deal Price £79.99”.
Issue
1. The complainant, who did not believe the necklace would be likely to retail at four figures and five or six thousand pounds, challenged whether the price statements made by the presenter in ad (a) were misleading.
2. The complainant, who saw the product in ad (b) on the Gemporia website with a retail price of for £57.99 on the same day as the TV ad, also challenged whether the price statements in ad (b) were misleading.
Response
1. Gemporia Ltd said they were comfortable with the four-figure statement in the ad and that in the traditional retail business model the value of the product would be between £3,000 and £4,000 for that type of quality. They said they could not speak for the presenter’s own experience in retail, although they were happy to provide her with training so she could understand the need to remove the second half of the presentation where she mentioned five to six thousand pounds as the price for the pearl necklace.
Gemporia provided links to examples of two products they said were similar to the necklace featured in the ad which they said were priced at $4,799 and £3,734. The pearl size in the example products ranged from 8 mm to 11 mm and strand length was 16 and 17 inches respectively. They said the price difference for the necklaces would be negligible as would the difference in any metal type or weight. That was because the value was contained in the pearls themselves being South Sea cultured pearls.
2. Gemporia said their TV and website channels were two completely different marketing mechanisms which is why they might have different prices, which could sometimes be higher or lower on each. The TV channel prices were driven by customer demand at the time of the falling auction.They said the Tanzanite stone was purchased in 2020 and they provided a screenshot from their in-house system of the purchase date. They also provided gem pricing and market information from the industry source, Gem Guide. The stone was not a high-ticket AAA Tanzanite, neither was it commercial chips and beads. They said if they were to conservatively grade the Tanzanite stone according to the Gem Guide scale, they would put the wholesale value of the stone, not including the costs of sourcing, metal, design and retail, at £78. Their presenters were regularly trained on the updated wholesale costs which explained their surprise when the finished jewellery was retailing for less than the wholesale cost on the day of the gem.
Assessment
1. Upheld
The presenter in ad (a) stated, “There is no way we should be taking any South Sea strands outside of four figures … I’ve worked in a jewellers before and to put that in a shop window, that would go in at least five, six thousand pounds.” The ASA considered that viewers would understand from those claims that the pearl necklace being featured would usually be sold for four figure sums and that in the presenters’ experience, similar necklaces would retail at five or six thousand pounds.
The CAP guidance on “Teleshopping price indications and comparisons” (the Guidance) explained that advertisers must ensure that comparative or illustrative prices, whether they be Recommended Retail Prices (RRP), guide prices, or similar, are genuine and not likely to mislead and that this applied both to explicit and implied comparisons. The Guidance also stated that comparisons with competitors’ prices must be with the prices for identical, or substantially equivalent products and that broadcasters must hold documentary evidence to support price claims before transmission.
We understood from Gemporia that they believed the value of the necklace was between £3,000 and £4,000. They provided links to two competitors’ websites which they said showed similar necklaces to the one featured in the ad. The first link was for a necklace priced at $4,799 US dollars. We were not provided with the equivalent price in pounds sterling at the time the ad was broadcast. The second link was for a necklace priced at £3,734. While we accepted that both necklaces were priced at four figure sums, £3,734 and $4,799 was still considerably less than the five or six thousand pounds retail price stated in the ad as being the price of similar necklaces, in the presenter’s experience.
We further understood that pearl size, quality grading, length of strand and the type of metal used in the necklaces were all relevant for determining the price of the product. Gemporia maintained that those factors made only a negligible difference between the price of the necklace featured in the ad and the two competitor examples provided. However, we noted that all the necklaces varied in length, pearl quality and pearl size. We therefore considered that the three necklaces were neither identical nor substantially equivalent to justify comparing them with each other. We therefore considered that the evidence was insufficient to substantiate that the pearl necklace would realistically sell for the price range stated by the presenter. In the absence of adequate evidence demonstrating that the necklace featured in ad (a) would retail for five or six thousand pounds, we concluded the claim had not been substantiated and was therefore misleading.
On that point, ad (a) breached BCAP Code Rules 3.1, 3.9. (Misleading advertising), 3.18 (Prices) and 3.39 (Comparisons).
2. Upheld
We considered that viewers were likely to understand from the claims in ad (b) that “Deal Price £79.99” for the Tanzanite & White Zircon sterling silver ring featured on Gemporia’s teleshopping channel was the lowest price they sold the ring for. The presenter also stated, “We’re going to take it under a hundred pounds, it’s brand new, something’s gone wrong there, no wonder everybody’s gone for this” and “There’s sometimes some things just fall through the net.” We considered those statements created an overriding impression that the price of £79.99 was unusually low and that viewers would expect that they were getting the best or lowest price for the ring by purchasing it from the teleshopping channel.
The price of the ring started at £199 and decreased to £99.99 and then finally to £79.99. We acknowledged that the live nature of a TV shopping channel meant that viewer demand could affect the price the product was sold for. However, we understood from the complainant that they had seen the same ring on the same day on Gemporia’s website priced at £57.99. We had not been provided with any evidence that the lower price was a promotional price and that the usual selling price of the product on the website was higher than £57.99. We therefore considered that viewers of the teleshopping channel would be surprised to learn that the same product was sold on Gemporia’s website for less than half the starting price of £199 featured on their teleshopping channel.
Because consumers were likely to understand that the price on the teleshopping channel was the lowest price Gemporia sold the product for when that was not the case, we concluded that ad (b) was likely to mislead and breached the Code.
On that point, ad (b) breached BCAP Code rules 3.1 (Misleading advertising) and 3.18 (Prices).
Action
Ads (a) and (b) must not appear again in the forms complained of. We told Gemporia Ltd to ensure they held adequate evidence to substantiate price statements, including evidence relating to the usual selling price of their products. We also told them to ensure future savings claims did not mislead, and represented genuine savings for consumers.
