Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.Ad description
The Outfox The Market Facebook page featured a cover video and a post promoting an energy supplier:
a. The Facebook page cover video, seen 5 April 2019, which featured two graphics stated “SWITCH AND SAVE TODAY” and “THE CHEAPEST GREEN DEALS IN THE UK” in speech bubbles. The text “OUTFOX THE MARKET” then appeared.
b. A Facebook post, posted and seen 5 April 2019, stated “Full disclosure. There was 14 hour period on Wednesday and Thursday when we were the second cheapest supplier in the UK. Luckily our pricing chaps are at the top of their game and we have reclaimed the top spot!”. A graphic stated “THE CHEAPEST ENERGY SUPPLIER IN THE UK”.
Issue
The complainant, who had not been able to find Outfox The Market listed as the cheapest on the energy tariff comparison sites he had consulted, challenged whether the following claims were misleading and could be substantiated:
1. “THE CHEAPEST ENERGY SUPPLIER IN THE UK”; and
2. “The cheapest green tariffs in the UK”.
Response
1. Outfox the Market Ltd explained that there were 14 separate transmission areas in the UK ‒ energy supply tariffs varied, as the different transmission companies charged different rates in each area. They stated that the Scottish Hydro area had high distribution costs, and as they were not the cheapest supplier in that area only, they did not make the advertised claims to Facebook users in that location. They stated that the ad should have included a qualification setting out that the Scottish Hydro Area was not included. They also provided a screenshot from Facebook showing the locations which they excluded from their audience.
Outfox the Market stated that when consumers did not know their actual consumption, the figures used in energy bill comparisons were based on whether usage was ‘low’, ‘medium’ or ‘high’, as determined by Ofgem, the industry regulator. Ofgem required claims to be based on their official average figures and it was standard practice in the industry for those figures to form the basis of the values used for comparisons. Ofgem’s low average was electricity at 1900kWh and gas at 8000kWh; the medium average was electricity at 3100kWh and gas at 12000kWh, and the high average was electricity at 4600kWh and gas at 17000kWh.
Outfox The Market provided links to around 30 news articles from a range of different publications dating from December 2017 to August 2019 which made reference to Outfox the Market offering the cheapest energy or green deal in the UK. They considered the quantity of articles from many publications demonstrated that Outfox The Market had been found to have the cheapest tariff on the market by multiple researchers who also confirmed in the articles that they had searched various platforms including, uSwitch, Compare the Market and Energy Helpline. Outfox The Market stated that all the energy they supplied was green as standard, and therefore all their tariffs were green by nature. They provided screenshots from a comparison/switching website showing an Outfox The Market tariff offering the greatest savings of the tariffs listed, in relation to all three of Ofgem’s average values, namely low, medium and high. Outfox the Market stated they did not subscribe to comparison sites and did not pay them fees. They stated suppliers could appear free of charge or by paying. They stated that, provided consumers chose to select ‘view whole market’, they were able to see all suppliers irrespective of whether or not they paid fees.
Assessment
1. & 2. Upheld
The ASA considered that the claim “THE CHEAPEST ENERGY SUPPLIER IN THE UK” would be interpreted by consumers as an absolute claim that Outfox The Market was providing a cheaper energy tariff than any other provider in the UK, regardless of a consumer’s usage or where that consumer was based. Similarly, we considered they would understand “The cheapest green tariffs in the UK” to relate to tariffs wholly or prominently derived from renewable sources, and that their tariff would be cheaper to all UK users than any others available. Although we acknowledged that ad (b) indicated there had been a period of time when Outfox The Market did not consider it could claim to be the cheapest supplier in the UK, we considered consumers would understand that was temporary and unusual. We therefore considered that claim reinforced the impression that Outfox the Market were consistently and regularly providing the cheapest energy tariff.
To substantiate the absolute, whole market claims that their tariffs were cheaper than all other energy providers, we considered the advertiser should provide robust comparative evidence and representative data relevant to all UK consumers. We did not consider that news articles were sufficient to support the claims.
Although we acknowledged that Outfox the Market had put some provisions in place to prevent consumers who might reside in the Scottish Hydro tariff area from seeing the ad, we considered the ads’ claims, which did not make reference to any geographical exclusions, would be understood to relate to the UK as a whole.
We noted the complainant had found that Outfox the Market did not offer the cheapest tariff when carrying out different searches on comparison sites and we noted the examples he had provided. The screenshots from the comparison site provided by Outfox the Market were partial and did not represent the full web page. We considered that supporting documentation should include all relevant surrounding information needed to contextualise and fully understand the results. We also noted that neither the ads nor the screenshots set out the time period to which the results related, and we had not seen further supporting information showing that Outfox the Market consistently or regularly offered the cheapest tariff. We also noted that it was not clear whether the Outfox the Market tariffs listed in the price comparison sites were available to all consumers in the UK.
We also understood that there were energy providers who did not subscribe to or might chose not to be included in price comparison websites and, therefore, the evidence provided might not represent a full comparison of all energy providers in the UK and the tariffs offered. In light of that, although we acknowledged that the advertiser had provided documentation relating to three different usage values, we considered that listings from comparison sites would be unlikely to constitute robust, comparative and representative data relevant to all consumers, as required to support absolute, whole market claims.
Because we had not seen sufficient evidence showing that Outfox the Market consistently and regularly offered the cheapest energy and green energy tariff to all consumers in the UK, we concluded that the ads were misleading. On points 1 and 2, the ads breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation).
Action
The ads must not appear again in their current form. We told Outfox the Market Ltd not to claim they offered the cheapest tariff to all UK consumers regardless of usage or location unless they held sufficient evidence to support their claims.
