Ad description
A website, www.marksandspencer.co.uk, featured an offer entitled "Dine in for two for £10 with free wine". Further text stated "Buy a main course, side and dessert, all for £10 with free wine". The ad listed the food and wine options.
Issue
The complainant challenged whether the reference to 'free' was misleading.
Response
Marks and Spencer plc (M&S) explained that they had previously promoted a "Dine in for two" offer in which several combinations of a qualifying main course, side and dessert fell below £10. They said that offer did not promote the wine as "free". They said the current promotion differed because all food combinations in the advertised offer had a total shelf price of more than £10. They therefore believed it was acceptable to describe the beverage as "free" in the advertised offer.
M&S believed the advertised offer complied with the Committee of Advertising Practice's (CAP) guidance on the use of 'free' and considered the ad promoted a conditional-purchase promotion. They said that all items included in the offer were individually priced and could be purchased separately; the beverage was supplied with the paid for food items only if the customer purchased a main course, side dish and dessert from the items included in the selected offer; and the price of all individual items was displayed on the shelves and remained the same if customers decided not to take the wine or chose to purchase them individually. They considered the ad made clear the nature of the offer and that its presentation was not likely to mislead.
Assessment
Not upheld
The ASA considered the ad promoted a new offer of the "Dine in for two". We understood the beverage was genuinely separable from the paid-for items (main meal, side dish, dessert). The beverage was not supplied with the paid-for items unless the customer complied with the terms of the promotion and that customers were aware of the stand-alone price of the paid-for items. The price remained the same with or without the free item. We therefore considered the ad promoted a conditional-purchase promotion, as detailed in CAP's "Guidance on the use of 'free'".
The Principle at the outset of the CAP Code section relating to "Free" stated "Marketing communications must not describe a product as ‘free’, ‘gratis’, ’without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding and collecting or paying for delivery of the item". We understood that all food combinations of the advertised offer had a total shelf price of more than £10. The ad complied with the Principle because, in all circumstances, the consumer was not required to pay a fee for the beverage. The ad made clear the basis of the offer and that consumers would receive a main course, side dish, dessert and a bottle of wine for £10. We therefore considered the reference to the word "free" was not likely to mislead consumers.
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 (Misleading advertising) and 3.25 3.25 Marketers must not describe an element of a package as "free" if that element is included in the package price unless consumers are likely to regard it as an additional benefit because it has recently been added to the package without increasing its price. (Free), but did not find it to be in breach.
Action
No further action necessary.
