Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A national press ad for Marks and Spencer plc seen on 19 December 2017 featured text that stated, “We’re £10 cheaper than 2016** As reported by Good Housekeeping Institute M&S. The only supermarket where Christmas dinner cost less than last year* …”.
At the bottom of the page was small print that stated, “Based on Good Housekeeping Survey of the top 10 supermarkets ***Based on an independent survey by Good Housekeeping of comparable products for a Christmas dinner for 8 people with Frozen Stock Basted Whole Turkey (2017) in place of Fresh Whole British Turkey (2016) and a Classic Christmas Cake (2017) in place of a Collection Christmas Cake (2016) …”.
Issue
1. Both complainants challenged whether the claim “We’re £10 cheaper than 2016**” was misleading , because the comparison was based on the 2017 M&S Christmas dinner replacing two items from the 2016 M&S dinner with cheaper alternatives.
2. Both complainants challenged whether the comparative claim, “The only supermarket where Christmas dinner cost less than last year*” was misleading and could be substantiated.
Response
1. & 2. Marks and Spencer plc (M&S) referred to the Good Housekeeping Institute (GHI) survey on which the claim was based. They stated that the intention of the survey was to highlight what consumers could pay at different supermarkets for a typical Christmas dinner based on a specific basket size/categories of items and how the price of that basket then compared with the supermarkets’ 2016 equivalents.
M&S explained that the survey was conducted by a third party (GHI) whereby supermarkets were invited to submit the prices of a set number of “staple” Christmas dinner items within certain prescribed parameters (such as weight) for 2017. It was the GHI which then carried out the analysis to determine the overall basket price and making a comparison against the data submitted by those same supermarkets and grocers for their previous Christmas dinner in 2016. Based on that, GHI published the results indicating the relative price rise/fall between 2016 and 2017.
M&S stated that the results of the survey indicated that the price of an average basket for Christmas dinner at M&S was less in 2017 than it had been in 2016. In terms of the items and data submitted in 2017 compared with 2016, there were two differences that were not identified by the GHI survey, and were not made available on their website for consumers to view.
M&S stated that the first difference was that M&S submitted a frozen turkey as part of their 2017 Christmas dinner, whereas in 2016 it had been a fresh turkey. This was because they did not have a frozen turkey available to submit in 2016. The GHI survey specifically required a frozen turkey in 2017 and therefore, there was no option but to compare the 2017 frozen turkey with the 2016 fresh turkey. The second difference was that in 2017, they were able to offer a “Classic Christmas Cake” at a better value price than the “Collection Christmas Cake” they sold in 2016.
M&S stated that in both cases, the GHI’s requirement was simply that the item fell within the applicable stipulated category and was a certain minimum weight/size, not for example that the turkey or cake had to be of a certain range or quality. Furthermore, they provided a table summarising the GHI’s requirements for submissions for the survey.
M&S, however, believed that they needed to address the two differences between the 2016 and 2017 Christmas dinners in the ad. This was because they considered that some consumers might not consider fresh/frozen turkeys and the two types of Christmas cakes as exactly like-for-like products, albeit for the GHI’s purposes they were comparable.
M&S strongly believed that the products were comparable and taken together with the details made available in the ad’s small print, they considered the ad was not misleading and had in fact provided more information than consumers could have obtained elsewhere, either via the GHI directly or in the wider media.
Assessment
1. Upheld
The ASA considered that consumers would interpret the claim “We’re £10 cheaper than 2016**” to mean that they could purchase the same type and quality of traditional Christmas food items that M&S offered in 2016, but that they would be £10 cheaper in comparison.
We noted that the claim featured asterisks that linked to the small print at the bottom of the ad, which stated “***Based on an independent survey by Good Housekeeping of comparable products for a Christmas dinner for 8 people with Frozen Stock Basted Whole Turkey (2017) in place of Fresh Whole British Turkey (2016) and a Classic Christmas Cake (2017) in place of a Collection Christmas Cake (2016) …”. That meant that the M&S 2017 Christmas dinner deal was different from the 2016 Christmas dinner offer, specifically that it had replaced a fresh turkey with a frozen one and a high-end cake with a cheaper alternative. Whilst we agreed that these substitutions were of the same type of product they were not of the same quality.
Although the qualification explained the differences, we considered it was not sufficient to override the overall impression of the ad, that consumers could purchase the same type and quality of traditional Christmas food items that M&S offered in their 2016 dinner offer, but that they would be £10 cheaper in comparison.
Because the ad suggested that the M&S Christmas 2017 dinner included the same type and quality of food items as the 2016 deal, when that was not the case, we concluded that the claim “We’re £10 cheaper than 2016**” was likely to mislead consumers.
On that point, the claim breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(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
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification).
2. Upheld
We considered that consumers would interpret the claim “The only supermarket where Christmas dinner cost less than last year*” to mean that M&S was the only supermarket whose 2017 Christmas dinner offer was cheaper in comparison to their 2016 deal. We considered consumers would also understand from the claim that the comparison was with like-for-like Christmas dinner offers by the other participating supermarkets in the GHI survey.
However, as mentioned above, M&S’ 2017 Christmas dinner deal was different from their 2016 Christmas dinner offer, because it had replaced a fresh turkey with a frozen one and a high-end cake with a cheaper alternative. Furthermore, M&S did not provide any comparative evidence showing that the other participating supermarkets in the GHI survey had also replaced a fresh turkey with a frozen one and changed their Christmas cake for a cheaper alternative for their 2017 dinner. If it was the case that those supermarkets had included a frozen turkey in 2016 and 2017 as well as offering the same type of cake in both years, then the claim “The only supermarket where Christmas dinner cost less than last year*” would have been made on selected elements that gave M&S an unrepresentative advantage, in a manner that was unclear to consumers.
Because consumers were likely to understand that the comparisons were like-for like, when M&S had compared their Christmas dinner items with cheaper alternatives from 2016, but had not provided evidence that the other supermarkets had done so too, we concluded that the comparative claim “The only supermarket where Christmas dinner cost less than last year*” was misleading.
On that point, the claim breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(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),
3.33
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) and
3.39
3.39
Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises.
(Price Comparisons).
Action
The ad must not appear again in its current form. We told M&S that their future advertising for such offers must not suggest that they were offering items of the same quality as in previous years when that was not the case. Furthermore, they must ensure that their advertising did not suggest that an offer was a like-for-like comparison with their competitors’ unless that was the case and could be supported with adequate evidence.
