Background
Summary of Council decision:
Two issues were investigated, both of which were Not upheld.
Ad description
A national press ad for Iceland, seen in the Sun Newspaper on 4 December 2019, featured the headline “NUMBER 1 FOR A LUXURY VALUE CHRISTMAS FEAST, followed by various images of Christmas foods, each of which included a price tag and label. The centre of the ad featured a turkey crown, labelled “Luxury Turkey Crown” followed by the price tag “£16”. Text underneath stated, “We compared prices on 11 luxury products. Choose frozen. Save Money. Beat the queues”.
Small print text at the bottom stated “Retailers standard and promotional prices checked online against Iceland standard priced products on 26.11.19. All products are subject to availability. UK stores only, excludes The Range stores. See full price comparison details at https://www.iceland.co.uk/terms.html”.
Issue
WM Morrison Supermarkets plc, who believed that the Iceland turkey crown was not comparable to the Morrisons turkey crown it had been compared with because it was frozen and not of the same quality, challenged whether:
1. the price comparison was misleading; and
2. could be verified.
Response
Iceland Foods Ltd (Iceland) said they did not consider that their price comparison was misleading. They said that the purpose of their comparison was to compare the price of Iceland’s frozen luxury range against their competitors’ luxury ranges by using products meeting the same need and intended for the same purpose as their competitors. They said that the prices of the products shown had been compared against the total value of the same premium products in the competitor stores and that the value of each basket had been set out in the advert.
Iceland provided documentation of their basket comparisons between Morrisons, Asda, Sainsbury’s and Tesco. They compared 12 Christmas food products, comprising turkey, potatoes, mince pies, Christmas pudding, carrots, cauliflower cheese, pigs in blankets, Brussels sprouts, stuffing, brandy sauce and beef dripping Yorkshire puddings. They said that their ‘luxury’ range comprised their premium tier of frozen products. They said that they regularly performed comparative taste tests with their competitors to ensure that the offering, taste and quality of the range was of a luxury standard. They said that all of their ‘Luxury’ frozen products were as premium in quality as their Luxury chilled equivalents and whether a product was frozen or chilled did not affect its premium status.
They said that this was their luxury tier frozen turkey and it was high quality on the basis that it was British, Red Tractor Assured, and Good Housekeeping Taste approved 2019. They acknowledged that the Morrisons’ turkey in their comparison was from ‘The Best’ range, free range, bronze and chilled and that this was clearly set out for consumers in their website link provided in their ad. They said that they had specifically chosen this turkey because it was Morrisons’ ‘premium’ tier product and all of their comparisons had been made against each supermarket’s luxury or premium range. They also acknowledged that their turkey included water, turkey stock, fermented rice and starches and said that this was a new industry-leading practice and enhanced the luxury qualities of the product. They said that there was no difference between luxury frozen and luxury chilled products.
Research showed that frozen food could keep nutrients locked in for longer than its chilled equivalent. They provided an extract from Morrisons’ website which stated that freezing food could lock in nutrients and freshness and would be just as enjoyable as the day it was frozen. They said that their comparison was therefore with products which met the same need and was intended for the same purpose.
Iceland said that their competitors’ turkeys were priced between £25 and £28, and Morrisons’ turkey was priced at £25.50. They said that their turkey was the ‘Luxury British Easy Extra Carve Tasty Turkey Crown’, which was priced at £16 (£8 per kg). They said that they offered their luxury products at more competitive prices but did not consider that a comparison with their competitors’ standard frozen turkey was the most objective test for this comparison.
Iceland said that the price of Morrisons’ turkey alone did not affect the total savings claimed because the savings claim set out in the substantiation was from a total of all of the products in the comparison. They said that the substantiation was made clear to consumers in their ad and denied that their comparison misled consumers about how much they could save at Iceland. Iceland did not consider that the ad made it difficult for consumers to objectively compare products. They said the main body of the ad stated “We compared prices on 11 luxury products” and the small print contained further information about how the overall price was measured as well as a signpost to a URL web address which gave further details about the basis of the comparison. They said that the term ‘luxury’ was stated in their turkey product image which appeared alongside the turkey product description.
Assessment
1. Not upheld
The ad was headed “NUMBER 1 FOR A LUXURY VALUE CHRISTMAS FEAST.” All of the products featured in the ad contained the word “luxury” in their product description, while smaller text under the title stated, “We compared prices on 11 luxury products. Choose frozen. Save money. Beat the queues”. Given that Iceland was known primarily as a frozen foods retailer, and the reference to “choose frozen”, we considered that the comparison made clear that the price comparison was between Iceland’s “luxury” top-tier own-brand frozen range and other stores’ top-tier own-brand ranges. We considered that consumers would understand that the comparator products may or may not be frozen.
Overall, the eleven products represented a selection of goods that consumers might be looking to purchase at Christmas. We considered that the ad would be understood by consumers to mean that they would make savings on a premium own-brand Christmas food shop when shopping at Iceland, compared to the other supermarkets listed.
We noted that Morrisons said that because their turkey was free range and labelled bronze, it was of a better quality, while Iceland’s turkey was of a lower quality because it contained additional ingredients and was frozen. We understood that ‘free range’ was a regulated term subject to specific requirements, namely a defined amount of space and outdoor access for at least half of the turkey’s life. We understood that “bronze” was a particular breed of turkey, crossed between domestic and wild turkeys, and had a stronger flavour than the standard broad breasted white turkey. While we acknowledged that there were different characteristics between Morrisons’ turkey and Iceland’s turkey, we considered that “quality” overall was subjective and likely to encompass different things for different people, some of which would be subjective, for example, taste, or preference for fresh over frozen, while others would be objective, such as welfare standards.
We considered that in the context of an ad presenting a price comparison between premium own-brand Christmas food shops, what was likely to be important to the price-conscious target audience was that the products were at the top tier of each store’s own-brand range. Morrisons considered that the price of Iceland’s turkey alone substantially affected the total saving claimed and that this could mislead consumers about the amount they could save when purchasing the items at Iceland rather than at Morrisons. They considered that the more comparable product from their range with similar characteristics to Iceland’s “Luxury Turkey Crown” would be Morrisons Frozen Turkey Breast Crown, 2kg Medium, which was priced at £14.50. We noted that this was £1.50 cheaper than Iceland’s turkey crown. We noted that if Morrison’s cheaper turkey product had been used in the comparison, Iceland would have still had the cheapest overall price in the ad.
We also understood that the prices of the remainder of the Christmas food items were cheaper at Iceland compared to Morrisons. We did not consider that the price difference therefore derived predominantly from the comparison between the turkeys. We understood that Iceland sold a range of different own-brand turkeys. The turkey in question sat in the highest end of that range and was therefore comparable to Morrisons’ free range bronze turkey, which was also at the top end of their own-brand range.
We acknowledged Morrison’s concern that Iceland’s turkey had not been labelled as “luxury” in its product description; however, screenshots provided by Iceland indicated that the turkey was part of their “Luxury” range. We concluded that because consumers would be likely to understand the ad to be comparing a range of Christmas food items from Iceland’s top-tier own-brand frozen range with items from other supermarkets’ top-tier own brand ranges (which included both fresh and frozen items), the inclusion of the Morrisons ‘The Best’ free range bronze turkey crown did not render the price comparison misleading.
On that point, we investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification) and
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
(Comparisons with identifiable competitors), but did not find it in breach.
2. Not upheld
The CAP Code required that “comparisons with identifiable competitors are verifiable”. We considered that meant that an ad which featured a comparison with an identifiable competitor or competitors needed to include, or direct a consumer to, sufficient information to allow them to understand the comparison, and be able to check whether the claims were accurate, or ask someone suitably qualified to do so.
We noted that a URL for a web page where consumers could find further information had been provided at the bottom of the ad. The web page, for example, provided further details of the basis for the comparison. A further link allowed consumers to access a table listing the names and prices of the products compared for each supermarket. We therefore considered that the comparison was verifiable.
On that point, we investigated the ad under CAP Code (Edition 12) 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with identifiable competitors), but did not find it in breach.
Action
No further action necessary.
CAP Code (Edition 12)
3.7 3.33 3.35 3.10 3.9 3.1 3.3
