Background
This Ruling forms part of a wider piece of work on online choice architecture, identified for investigation following complaints received and intelligence gathered by the ASA.
Ad description
A paid-for ad on X for The Sole Supplier, seen in December 2023, featured an image of a pair of Nike trainers. The captioned stated, “Now just £26 at Nike! [exploding head emoji] [black heart emoji]”. The ad clicked through to a product listing on the Nike website.
Issue
The ASA, who understood the product was intended for older children and limited to sizes UK 3?6, challenged whether the ad was misleading.
Response
Nike Retail B.V. t/a Nike confirmed that they had a commercial relationship with The Sole Supplier Ltd, whereby The Sole Supplier would receive commission for sales generated through their ads. They explained that the contractual agreement allowed The Sole Supplier to advertise Nike and its products without prior approval. The Sole Supplier, however, was required to ensure that ads complied with applicable laws and regulations, including the CAP Code. Nike therefore confirmed that the ad was created and published by The Sole Supplier without any input or oversight from them. They believed that because commission was based on sales, rather than the amount of clicks the ad received, the risk that affiliate marketers would publish misleading ads to entice clicks from consumers was mitigated.
Nike did not believe that the ad was misleading. Given the promotional price and the caption of the ad, they believed a reasonable consumer would assume that there would be some limitation on the item, such as the availability of sizes. Furthermore, they believed the lack of complaints supported the view that consumers did not find the ad misleading.
The Sole Supplier said the ad guided users to more detailed information about the product, including what sizes were available. However, they said they were amenable to considering how to present size information more prominently in future advertising, within the constraints of the platform.
Assessment
Upheld
The CAP Code required that marketing communications did not mislead consumers by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
The ASA noted the brief caption, which included the price and brand of the product, and the simplicity of the image, which showed the trainers against a white background. We noted there was nothing in the ad to indicate to consumers that the trainers were intended for older children or that they were available in limited adult sizing, nor were there any visual cues, such as a sense of scale, to indicate the smaller size of the shoes. We therefore considered that consumers would rely on their own assumptions when interpreting the ad and, in the absence of any information to suggest otherwise, we considered most consumers would reasonably assume that the trainers were for adults.
Furthermore, we considered the text “Now just £26” alongside the exploding head emoji reinforced the impression that the pictured trainers were intended for adults. We considered the text and emoji implied that the advertised price was a significant discount against the usual selling price of the trainers. Because children’s shoes were typically cheaper than adult shoes, and were exempt from VAT, we considered that the average consumer would not regard £26 as a heavily discounted price for children’s trainers, and therefore would understand the price referred to a pair of adult trainers. We therefore considered that the consumer would click through to the website and expect to be able to purchase a pair of adult trainers at the advertised price.
We understood that the ad linked to the product page for the ‘Nike MD Valiant’ trainers on the Nike website. The page categorised the trainers as an “Older Kids’ Shoe” with available sizes ranging from UK 3 to UK 6. We understood that the majority of adult women’s Nike lifestyle trainers were available up to size 9.5, with some styles available up to size 14, and adult men’s Nike lifestyle trainers were available up to size 14. On that basis, we considered that the sizes of the advertised product were limited to such an extent that a significant number of adults would not be able to purchase their desired size.
While we acknowledged that the linked page contained clear information about the available sizes, we considered that the ad implied that the shoes were for adults, and that consumers who clicked through from the ad would be doing so on that understanding.
Because the ad did not make clear that the advertised trainers were older children’s shoes or limited in adult sizing, we concluded that the ad was likely to be misleading by omission.
The ad breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising).
Action
The ad should not appear again in the form complained of. We told Nike Retail B.V. t/a Nike and The Sole Supplier Ltd to ensure that in future, their ads did not omit material information, such as limitations on sizing, which would cause consumers to make a transactional decision they would not have otherwise taken.
