Background
Summary of Council decision:
Two issues were investigated both of which were Upheld.
Ad description
Two ads for the online fashion retailer I Saw It First:
a. A text message, received on 6 October 2019, stated, “QUICK, 75% OFF EVERYTHING! Shop 100s of new added to sale. 99p Delivery ends midnight”. A link titled “Shop” with the relevant web page was below.
b. The website isawitfirst.com, seen on 7 January 2020, showed a banner at the top of the page which stated, “HURRY! FREE DELIVERY* ENDS IN 0H 2M 6S”. The countdown clock was shown in a red font on a light orange background. When the countdown clock expired, the offer remained on the site but the wording “ENDS SOON” replaced the countdown clock.
Issue
1. The complainant, who understood that the promotion was not applicable to all the products, has challenged whether the claim “75% OFF EVERYTHING” could be substantiated and was misleading.
2. The ASA challenged whether ad (b) misleadingly implied the price would revert to the higher price once the countdown was over, when it actually continued at the same sale price after the countdown clock reached zero.
Response
1. I Saw It First Ltd t/a I Saw It First stated that they usually included an asterisk stating “terms apply” but in that instance it had been omitted by mistake. However, they argued that if consumers followed the link they would be directed to the 75% off category only and therefore believed it was clear.
2. I Saw It First stated that the offer was time limited. They stated that the countdown clock made it clear to consumers when the promotion ended. I Saw It First explained that the same offer appeared after the countdown clock ended due to a maintenance issue. They explained that the website was not immediately updated when the countdown clock expired. They added that if a purchase had been made outside of the countdown expiry they would not have honoured the offer made and therefore consumers who had purchased during the countdown would not be disadvantaged. They added that they have sped up the internal process to mitigate the same offer appearing again.
I Saw It First added that it was not misleading if a countdown clock reset with a better offer because the preceding offer was a separate distinct offer to any subsequent offers. They also explained that if the preceding offer was accepted then they were obliged to contract on those terms and not the terms of any subsequent offer.
Assessment
1. Upheld
The ASA considered that consumers would interpret the claim “75% OFF EVERYTHING!”” to mean that all products on the I Saw It First site were included in the promotion, whereby all products would be discounted by 75%. We understood that there was not 75% off every item and that consumers were directed to a separate specific web page for the items within the promotion. Because consumers were likely to interpret the claim “75% OFF EVERYTHING” to apply to all products when in fact certain lines were excluded, we concluded that ad (a) was misleading.
On that point, ad (a) breached CAP Code (Edition 12) rule 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
2. Upheld
The ad featured a ticking countdown clock that appeared to be counting down to zero. We considered that consumers would understand from the claim “FREE DELIVERY” to mean that if they purchased any product within the time period, the product would be delivered for free, whereas if they purchased the product after the clock reached zero, they would have to pay for delivery at I Saw It First’s usual price.
We considered the word “HURRY” reinforced the impression that it was time-limited. We understood, however, that once the countdown clock reached zero, the offer remained on the page alongside the wording “ENDS SOON”. We noted I Saw It First’s comment that countdown clocks reset with a better offer; however, we considered that consumers were likely to regard the offer as a time limited promotion and expect it to expire at the end of the countdown clock. The countdown clock was therefore likely to pressurise consumers into making swift transactional decisions, including purchasing the product, 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 free delivery to end and to revert to the usual price after the countdown ended, when in actual fact the offer still appeared after the countdown clock expired, the promotions were not actually time limited.
We therefore concluded that the ad was misleading. The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 8.2, 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 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: 1, 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: 4E (Promotional marketing).
Action
The ads must not appear again in their current form. We told I Saw It First Ltd not to imply that all products were included in an offer if products were excluded. We also told I Saw It First Ltd to ensure that their future advertising did not misleadingly imply that discount offers were time-limited, for example by using a countdown clock, if that was not the case.
