Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A leaflet, for a supermarket, which was available in-store and online from www.lidl.co.uk, featured a range of promotional items. The back page was headed "Half Price Weekend Offers 16.03.13 & 17.03.13 Only" and featured four offers, including one for strawberries. Text stated "Fresh Strawberries ... 500g Punnet ... £2 Per Punnet £1 Half Price Offer!". Small print at the bottom of the leaflet stated "... Prices correct at time of going to print & valid for a limited period only. ... Offers available in selected stores only and subject to availability, see in-store for details".
Issue
1. Two complainants challenged whether the ad was misleading, because the strawberries available in-store on 16 and 17 March were priced at £1.50.
2. One of the complainants also challenged whether Lidl had ensured relevant communication with consumers to inform them the offer had been withdrawn.
Response
1. & 2. Lidl UK GmbH said that on rare occasions cancelling a promotion was unavoidable, usually due to circumstances beyond their control, and on those occasions they always attempted to find a similar product to offer their customers as a replacement. In this instance, the ad, which comprised several pages and listed over 80 promotional items, had been sent for printing on 21 February and were distributed to their stores between 4 and 6 March. However, on 5 March they were informed by their strawberry supplier that there was a problem with the quality of the strawberries because of adverse weather conditions. As a result they took the decision to cancel the promotion and immediately considered all reasonable steps which could be implemented to inform customers of the change, in addition to the usual disclaimers "subject to availability" and "see in-store for details", which were included at the bottom of their leaflets.
Lidl said they immediately sent a disclaimer to their stores on 5 March, to be displayed in-store, to inform and apologise to customers, and they also sent a further disclaimer on 15 March. They considered it would have been unreasonable and disproportionate to use over-stickers or add inserts to each leaflet to inform customers of the cancellation of the promotion because of the large volume of leaflets involved, or to remove the leaflets altogether because of the large number of other promotions listed. In addition to the disclaimers to be displayed in-store, they e-mailed their registered customers to alert them to the problem, and arranged a promotion on iceberg lettuce as a substitute. They confirmed the leaflet had remained available for download from their website up to and including the weekend of 16 and 17 March. They said the link to the leaflet was created by an external agency for all European Lidl countries as a standardised process.
They explained that the strawberries, which were available in-store at £1.50 on the original planned dates for the promotion, were small volumes which had become available in the two weeks leading up to 16 and 17 March. Those strawberries were priced at £1.50 rather than £1 because otherwise stock would not have been available to all customers.
Lidl considered that the small number of complaints demonstrated that their actions had been effective in alerting customers to the change.
Assessment
1. & 2. Upheld
The ASA acknowledged that when planning the promotion, Lidl had expected to be able to meet the likely response to it, and that when they became aware that, due to circumstances beyond their control, there would not be an adequate supply of strawberries to meet the likely response, they had withdrawn the promotion. We also acknowledged they had arranged a promotion on iceberg lettuce as a substitute, although we considered iceberg lettuce was not a direct substitute for strawberries.
We noted the actions Lidl had taken to communicate the change to consumers. However, we were concerned that those actions were not sufficient to ensure potential participants in the promotion were fully informed that it had been withdrawn. Whilst we noted Lidl had immediately sent disclaimers for display in their stores, we noted neither complainant had seen them in the stores they visited and we were therefore concerned that some stores may have failed to display the disclaimers prominently alongside displays of the leaflets or, during the promotional period, alongside the stocks of strawberries which were available at £1.50 per punnet. Furthermore, we considered that, because Lidl became aware that they would not be able to run the promotion during the three-day period in which the leaflets were distributed to stores, there was an opportunity to inform stores to remove the leaflets from display (or, where they had not yet been distributed, that they should not be put on display), or to cover the relevant section of the leaflets with over-stickers or to include an insert in each leaflet to inform consumers that the promotion had been cancelled. We were also concerned that the leaflet had remained available for download from Lidl's website up to and during the promotional period, because we considered it would have been reasonably straightforward to amend the electronic document to remove reference to the strawberry promotion and/or to specifically alert customers to the change in availability of the promotion. Because they had not taken those actions, we concluded Lidl had failed to avoid causing unnecessary disappointment to potential participants and had therefore breached the Code.
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),
8.1
8.1
Promoters are responsible for all aspects and all stages of their promotions.
and
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.
(Sales Promotions),
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.
and
8.12
8.12
Promoters must not encourage the consumer to make a purchase or series of purchases as a precondition to applying for promotional items if the number of those items is limited, unless the limitation is made sufficiently clear at each stage for the consumer accurately to assess whether participation is worthwhile.
(Availability).
Action
We told Lidl UK GmbH to ensure they adequately communicated changes to promotions in future to avoid causing unnecessary disappointment to potential participants.
