Background
Summary of Council decision:
Four issues were investigated, two of which were Upheld and one was Not upheld. One issue was resolved informally after the advertiser agreed to amend or withdraw their advertising.
Ad description
Three ads for Lidl UK GmbH seen in August 2017 marketing a promotion for six bottles of Prosecco:
a. A website, www.lidl.co.uk, featured text on the “Food Offers” page that stated “SUPER WEEKEND 26th AND 27th August”. Below that was an image of a case that contained six bottles, with text underneath that stated “6 bottles of Allini Prosecco 1 6x 75cl Super Weekend £31.50 [strikethrough price] £20.00 each £3.33/75cl …”. Further down the web page, small print stated “1 While stock lasts” …”.
b. An in-store leaflet featured text that stated “SUPER WEEKEND 26th and 27th August”. Below that was an image of a case that contained six bottles with text above it that stated “6 bottles of Allini Prosecco 6x 75cl £3.33/75cl £31.50 [strikethrough price] 6 Bottle Case £20.00 …”. Towards the bottom of the page small print stated “Maximum 6 of each item per customer” and at the bottom of the page further small print stated, “Disclaimer: Prices correct at time of going to print & valid for a limited period only … Offers available in selected stores only and subject to availability, excluding limited range stores, see in-store for details …”.
c. A radio ad featured a voice-over that stated, “It’s super weekend at Lidl with up to 50% off on selected products. Get six bottles of Prosecco Frizzante just £20 … Lidl Big on quality little on price …”. At the end of the ad, the voice-over stated, “Subject to availability NI may vary. Selected stores whilst stocks last”.
Issue
The ASA received seven complaints.
1. Six complainants, who understood that demand for the promotion exceeded the available amount of Prosecco Lidl had in stock as their local stores had run out of stock, challenged whether the promotion was misleading and complied with the BCAP and CAP Codes because they did not believe the advertiser had made a reasonable estimate of demand.
2. One complainant, who purchased the item on 1 August 2017 at a discounted price of £27.89, challenged whether the higher price of "£31.50" quoted in ads (a) and (b) was misleading and could be substantiated.
3. Two complainants, who understood that the promotion was restricted to one box of six bottles of Prosecco per customer, challenged whether ad (b) suggested that consumers could purchase up to six boxes and therefore breached the CAP Code.
Response
1. Lidl UK GmbH stated that the promotion ran on 26 and 27 August 2017 and was advertised via a range of marketing channels, including their website, social media platform, in-store leaflets and radio.
Lidl stated that the radio ad ran from Thursday 24 August until 12pm on Sunday 27 August. The ad was not removed from broadcast because it was not until Saturday afternoon that they realised the promotion was proving more successful than anticipated. This therefore did not allow time for the ad to be pulled.
Lidl stated that every attempt was made to ensure each of their stores had an adequate amount of stock. They provided their sales figures for an average non- promotional weekend of Prosecco sales, which generally amounted to 5,340 bottles. However, they had not previously promoted sales of Prosecco and therefore analysed sales figures for previous promotions of similar sparkling wines and other comparable alcoholic beverages.
For an average weekend of a comparable special offer for alcohol, they had an increase in sales of 120,000 bottles. Those figures were taken into consideration when they purchased and allocated stock for the advertised promotion. Lidl stated that they also took into consideration the popularity of Prosecco as a consumer choice, and they therefore forecasted that for the Prosecco promotion they would potentially see an uplift in sales greater than that of previous comparable offers for alcohol (i.e. above 120,000 bottles). With that in mind, they purchased several hundred thousand bottles of Allini Prosecco Frizzante, which equated to 54,647 cases. They provided data to support that and commented that the volume of Prosecco was also purchased with a view that any unsold bottles subsequent to the promotion would be used for their Christmas sales.
Lidl also provided data showing the number of bottles of still wine and champagne they had delivered in the week they carried out their promotion for those products back in February and July 2017 for their 645 stores, as well as the unit of sales they had recorded for both promotions. They also provided the same data for their Prosecco promotion.
Lidl therefore believed that the data they provided demonstrated that the quantity of stock ordered was proportionate to the estimated volume of sales for the promotion. Furthermore, they stated that after the promotional weekend they had 18,500 unsold bottles remaining.
Lidl stated that the demand for the Prosecco promotion showed an unparalleled uplift in sales and because of that heightened demand, stock sold out in some localities. They believed that this was largely due to the unexpected and heightened level of engagement their campaign received via social media and public relations. They noted that their original social media post highlighting their promotion had been reposted and featured on a very popular social media page, entitled "Prosecco Watch" . The unprecedented engagement from their original post resulted in their campaign receiving 60–70% more traffic on their social media platform compared to previous similar promotional weekends.
In a bid to restrain consumer interest on the days preceding the promotion, they removed from public view the original post from their social media platform.
Lidl stated that their campaign was also featured in local and national newspaper ads, which also contributed to increased engagement from members of the public.
Lidl apologised for any inconvenience which may have been caused to consumers who were unable to take advantage of the offer. They said that should they consider similar alcohol promotions in the future, they would base their stock allocation on sales figures obtained from the advertised Allini Prosecco Frizzante promotion. Furthermore, they would also endeavour to be more proactive about their press releases to ensure that they had a greater influence, and ultimately, control over the content of media publications.
The Radiocentre stated that Lidl had provided them with confirmation that a reasonable estimate of demand was made for the promotion.
2. Lidl provided a screenshot of their internal stock database, which they believed showed that the price of Prosecco remained constant at £5.25 from 27 February 2017. They stated that at no point was there a price reduction until the promotion period (26 and 27 August 2017).
3. Lidl stated that prior to the promotion, a promotional activity memo (PAM) and internal communication bulletin was issued to store staff, which outlined the details of the promotion (including information regarding how consumers could only purchase a maximum of six bottles), customer communication information and also a disclaimer which stated "subject to availability. While stocks last". They provided copies of their PAM and internal communication bulletin. They said that staff were also available in-store to assist customers with queries surrounding the details of the promotion.
Lidl stated that it was always their intention to limit consumers to six bottles of Prosecco only (one case). They referred to ad (b) and stated that it featured the text "6 bottles of Allini Prosecco" and "Maximum 6 of each item per customer". They believed that was also made sufficiently clear in ads (a) and (c) as well as in press releases. Furthermore, they had displayed a price-board insert next to the Prosecco display at their stores, which stated "Allini Prosecco case deal - maximum 6 bottles / 1 case per customer".
Assessment
1. Upheld
The ASA understood that Lidl promoted a weekend offer on Allini Prosecco during the summer bank holiday (26 and 27 August 2017), having reduced the price of six bottles from £31.50 to £20.00.
Lidl stated that their estimate of demand for their Prosecco offer had accounted for a higher response rate compared to previous comparable offers for alcohol, because of its popularity. We referred to the data they provided and understood that on 25 August 2017 (a day before the promotion) several hundred thousand bottles of Prosecco had been purchased by Lidl and were available across their stores. We understood that the estimate was based on a previous weekend offer on red wine, and referring to the data they provided we noted that for their red wine promotion they had seen an increase in sales. We agreed with Lidl that the Prosecco offer would be more popular than their previous offer on still wine, particularly during the summer Bank Holiday. Therefore, we considered that Lidl must demonstrate that they had estimated a higher demand for their Prosecco promotion in comparison to the volume of sales they had experienced from their earlier promotion on red wine. The data showed that they had ordered 63% more bottles of Prosecco compared to the volume of sales they had recorded for the discounted red wine. Furthermore, we noted from the data that Lidl had also carried out a special offer on champagne and based on the total units sold in that promotion, they had ordered 80% more bottles of Prosecco for the advertised promotion.
The data also showed how many bottles of still wine and champagne Lidl had delivered in the week they carried out their earlier promotions for those products back in February and July 2017, as well as the unit of sales they had recorded for both promotions. They also submitted the same data for their Prosecco promotion. The data showed that in comparison to the volume of sales Lidl experienced with their still wine and champagne promotion, they had delivered a significantly higher number of bottles for their Prosecco promotion for the majority of their 645 stores.
We noted that eight stores had been identified by the complainants, which they understood had run out of stock during the promotion. We noted that Lidl had provided data showing that those stores still had stock availability after the promotion ended, ranging from 1 to 35 bottles of Prosecco. We also understood from the data that Lidl still had a total 18,500 bottles remaining across their stores a day after the promotion ended.
Therefore, we considered that Lidl had shown that they had made a reasonable estimate of demand for their Prosecco promotion, as required by the Code rule and that they had only been unable to supply that demand because of an unexpectedly high response beyond their control.
However, we noted that Lidl stated that demand for the Prosecco promotion showed an unparalleled uplift in sales and because of that heightened demand, stock sold out in some localities.
The Codes also required that if promoters relied on being able to meet the estimated response but were unable to supply demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside their control, they must ensure relevant timely communication with consumers.
We noted that Lidl had removed their original promotional post that appeared on social media prior to when the promotion started to limit consumer interest. We noted their comments that they were unable to withdraw the radio ad from broadcast because they did not have sufficient time to do so. This was because they only realised on Saturday afternoon (a day before the promotion was to end) that they were experiencing a high volume of sales. However, we noted that no other communication was provided to consumers to inform them that they were unable to supply demand for the promotional offer because of an unexpectedly high response that led to some localities running out of stock. Given that Lidl had promoted the offer on their website and social media, we considered that they should have used those same channels to inform consumers that stock had become limited.
Therefore, although Lidl had provided adequate evidence showing that they had made a reasonable estimate of demand for their Prosecco promotion, they did not however communicate to consumers that it became unlikely that they would meet that demand given that some of their localities had actually run out of stock due to an unexpected uplift in sales. Because of that, we concluded the promotion had not complied with the Codes.
On this point ads (a) and (b) breached CAP Code (Edition 12) rules 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. (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 8.11 8.11 If promoters rely on being able to meet the estimated response but are unable to supply demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside their control, they must ensure relevant timely communication with applicants and consumers and, in cases of any likely detriment, offer a refund or a reasonable substitute product. (Promotional marketing - Availability).
We also investigated ads (a) and (b) under CAP Code (Edition 12) rule 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. (Promotional marketing - Availability), but did not find it in breach.
On this point ad (c) breached BCAP Code rules 3.29 3.29 Advertisements that quote prices for featured products must state any reasonable grounds the advertisers have for believing that they might not be able to supply the advertised (or an equivalent) product at the advertised price, within a reasonable period and in reasonable quantities. In particular: and 3.29.1 3.29.1 if estimated demand exceeds supply, advertisements must make clear that stock is limited (Misleading advertising - Availability).
We also investigated ad (c) under BCAP Code rule 3.28 3.28 Broadcasters must be satisfied that advertisers have made a reasonable estimate of demand. (Misleading advertising - Availability), but did not find it in breach.
2. Not upheld
We considered that consumers would interpret the claim "6 bottles of Allini Prosecco 1 6x 75cl Super Weekend £31.50 [strikethrough price] £20.00 each £3.33/75cl" in ad (a) and "6 bottles of Allini Prosecco 6x 75cl £3.33/75cl £31.50 [strikethrough price] 6 Bottle Case £20.00 …" to mean that £31.50 was Lidl's normal selling price for six bottles of Prosecco.
We understood from the screenshot of Lidl's internal stock database that from 27 February 2017, they had set a retail price of £5.25 for each bottle of Prosecco, which equated to a total of £31.50 for six bottles. The data further showed that from 26 August 2017 to 28 August 2017 Lidl had reduced the price to £3.49 per bottle, which equated to £20.94 for six bottles, although we noted that the promotional price for six bottles was £20. We considered that showed that Lidl's normal selling price for a bottle of Prosecco was £5.25 and that the advertised promotion was the first instance when they had discounted the product.
Because of that, we considered that Lidl had provided adequate evidence to support the claim that they normally sold six bottles of Prosecco at the higher price of "£31.50" quoted in ads (a) and (b). We therefore concluded the claim had been substantiated and was not misleading.
On this point we investigated ads (a) and (b) under CAP Code (Edition 12) rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
2).
(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) and
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
2).
(Prices), but did not find it in breach.
3 . Upheld
We understood that consumers were restricted to one case of six bottles of Prosecco throughout the promotion and considered that that was a significant condition to the offer and needed to be clearly presented in ads (a), (b) and (c).
Regarding ad (a), the image of the product was shown with the number "1", which referred to the qualifying text "While stocks last" and appeared at the bottom of the page. However, we considered that did not make sufficiently clear that the offer was restricted to six bottles of Prosecco per customer. Furthermore, we noted that there was sufficient space where the image of the product appeared for such information to be communicated to consumers.
Ad (b) included the claim "6 bottles of Allini Prosecco 6x 75cl £3.33/75cl £31.50 [strikethrough price] 6 Bottle Case £20.00 …". Furthermore, an image of a boxed case containing six bottles of Prosecco was shown. We considered consumers would interpret the claim and the image to mean that the product was one item that contained six bottles of Prosecco being sold at a discounted price of £20.00. We noted that small print towards the bottom of the page stated "Maximum 6 of each item per customer", which we noted was not clearly linked to the promotional claim. However, given how we considered consumers would interpret the claim and the image of the product, that the qualifying text meant that consumers could purchase a maximum of six cases of Prosecco (36 bottles), when that was not the case.
Regarding ad (c), the voice-over at the end stated, "Subject to availability NI may vary. Selected stores whilst stocks last". However, we considered that this did not make sufficiently clear that the offer was restricted to six bottles of Prosecco per customer and we noted that such information had not been communicated to consumers throughout the ad.
On this point ads (a) and (b) breached CAP Code (Edition 12) rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
2).
(Misleading advertising),
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
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification),
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.
(Promotional marketing),
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:
and
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
(Significant conditions for promotions).
On this point ad (c) breached BCAP Code rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
2).
(Misleading advertising) and
3.10
3.10
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification).
Action
The ad must not appear again in its current form. We told Lidl that if they were unable to supply demand for a promotional offer because of an unexpectedly high response, they must communicate that information to consumers in a timely manner. Furthermore, they must include all significant conditions to an offer in their promotional material which must be clearly presented.
BCAP Code
CAP Code (Edition 12)
3.1 3.10 3.17 3.7 3.9 8.1 8.10 8.11 8.17 8.17.1 8.2 8.9
