Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Claims on www.sportsdirect.com, seen on 25 February 2018, promoted a pair of Karrimor walking boots. The price was displayed as £37.00, with a crossed out price of £84.99 next to it.
Issue
The complainant, who bought the boots in store, and found that the price was £41.99, and that the boots had a label attached showing a price of £79.99, challenged whether:
1. the crossed out higher price of £84.99 was misleading; and
2. the "£37.00" price claim was misleading, because they understood it was not possible to obtain the product at that price.
Response
1. Sportsdirect.com Retail Ltd (Sports Direct) said the crossed out higher price for the boots was a Recommended Retail Price (RRP), and that they were in possession of the price list from the manufacturer of the boots, which showed their recommended price as £85.
Sports Direct believed they could demonstrate the price was a genuine selling price in the market, because they said the boots had been available from 19 January 2018, and continued to be available on Karrimor’s website at the price of £84.99. They understood that sales had been made at that price, and that the higher price had therefore been established as a genuine selling price in the market.
2. Sports Direct said it was possible for consumers to purchase the boots at £37 online, plus the delivery or collection charge, which they said was clearly displayed.
Sport Direct said that like most retailers, they made it very clear on their website that delivery or collection charges were in addition to the price of the goods. They said those charges were clearly displayed alongside the product information section in respect of each product available on the website. In addition, the online checkout process required customers to select their preferred method of delivery or collection and again the amount payable was clearly stated.
Sports Direct said the terms and conditions of sale, which customers agreed to prior to purchase, also clearly stated that “prices on the Website may differ to prices in our retail stores, catalogues or elsewhere”. In addition, customers who chose to collect products in a Sports Direct store were given a free £5 voucher to spend in store.
Sports Direct said it would go against standard industry practices for website and in-store prices to have to align. They said retailers often sold at different prices online which could be for a number of reasons, from recognising lower operating costs online to harmonising international pricing. They explained that simply because a website was run by a business that also ran physical retail outlets did not mean that consumers would immediately assume that the same prices applied in store as online (and vice versa).
Sports Direct said the key question was whether they had made clear to customers that delivery or collection charges applied to their website transactions. For the reasons mentioned above, Sports Direct believed that they had – by showing the charges to their customers in a clear and prominent way (e.g. by displaying the charges alongside the product information section for each product and in the online checkout process, with customers being required to select their preferred method of delivery or collection alongside the amounts payable).
Assessment
1. Upheld
The ASA noted that Sports Direct had intended the price to relate to the RRP of the product. However, there was nothing in the ad to indicate that was the case, and in the absence of such an indication, we considered that consumers would understand that the crossed out price of £84.99 was the usual selling price of the boots at the time the ad appeared, from which Sports Direct were offering a reduction.
We therefore expected to see evidence to demonstrate that £84.99 was the price at which the boots were usually sold by Sports Direct. Because we had not seen any such evidence, we concluded that the ad was misleading.
On that point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices).
2. Upheld
We noted that the ad included details of the delivery charges for standard delivery and a “Click and collect” service, whereby orders could be delivered to participating stores. Both delivery charges were charged per transaction rather than per item, and therefore could not be built into the cost of the item, but should have been made clear to consumers. However, that information was lower down the page, and would require consumers to scroll down, which they would not need to do in order to add the product to their basket. We therefore considered that consumers might not see that information, and that it should have been presented more prominently. In the absence of a clear qualification, consumers were likely to understand they could purchase the boots for £37.
Notwithstanding that, we considered that consumers were likely to be aware that Sports Direct had physical stores as well as a website from which they could buy the product. We understood that the complainant had visited a Sports Direct shop expecting to find the boots priced at £37, and we considered that, in the absence of any information to alert them to the fact that it was an online-only price, consumers would expect that the price they saw for the boots would match the price they would be offered for in stores generally, and were likely to understand that they could visit a physical shop and obtain the boots for the stated price.
For those consumers who did see the delivery information lower down the page, they were likely to assume that the cost of delivery to a store would not be required for those stores which already had stock of the boots, and that would reinforce the impression that £37 would be the price in Sports Direct shops.
However, we understood that was not the case and that the boots had in fact been priced at £41.99 in their stores.
Because it was not possible to obtain the boots for £37, and because the ad did not make clear that £37 was an online price, before delivery, we concluded that the ad was misleading.
On that point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices).
Action
The ad must not appear again in its current form. We told Sportsdirect.com Retail Ltd that when prices were used as a reference they made clear what it was based on – for example, a Recommended Retail Price. We also told them, where applicable, to make clear when a price was an online price, and to make the delivery charges clearer.
