Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two promotions by Superdrug offering free gifts upon the purchase of qualifying products:
a. The first promotion, seen in-store on shelf-edge labels in the Braehead branch on 5 April 2018, stated "save 1/3 on Black and Asian Hair products... Free ORS Magic Hair Towel when you buy 3 Black and Asian hair products".
b. The second promotion, seen on the superdrug.com website on 4 May 2018, stated "Free Primer when you buy 2 St Moriz products".
Issue
1. One complainant challenged whether the promotion in ad (a) had been administered fairly, because they were told by staff that the store had not received a delivery of the free gift (a hair towel) and that the promotion could not therefore be honoured.
2. A second complainant challenged whether the promotion in ad (b) had been administered fairly, because they bought the required number of promotional products but were told that the free gift was out of stock.
Response
1. Superdrug Stores plc said the promotion offered a free ORS towel when a customer purchased any three Black & Asian haircare products. They said when they ran a 'gift with purchase' promotion, stock of the free gift was bought in specifically for the promotion, so the towel was not a product that was normally stocked by Superdrug. They said they carried out forecasting in order to establish how much stock of the gift would be required. They said for this promotion, the number of units ordered was based on previous promotions they had run. They said a similar promotion had run in 2017, during which 5,566 units had been given away. Because additional stores had been added to the 2018 promotion, Superdrug forecast that 7,000 units would be sufficient.
Superdrug said once the overall forecast had been reached, stock of the gift had been allocated to stores based on their sales of the products included in the promotion. Because the Braehead store sold relatively few of the products compared to other stores, less stock of the gift was planned to be sent to that store.
Superdrug said stock was usually dispatched to stores prior to a promotion starting, but on this occasion, they had issues with the stock arriving in their warehouse in a timely manner. That was because their supplier had failed to meet the required delivery dates due to the vessel carrying the products being delayed because of strong seas and rain. That ultimately meant that deliveries could not be placed when they needed to be to ensure all stores had stock at the start of the promotion, with the Braehead store being one of those affected.
Superdrug said when the promotion began, stores which did not have the stock were issued with a communication which all staff were instructed to read. They said it explained that stock of the towel was late in arriving, and that the store should offer an alternative gift (a free bonnet) to customers and explain that they currently did not have stock of the hair towel. Superdrug said all point of sale material indicated that –the gift was subject to availability.
Superdrug said in respect of the Braehead store, the promotional tags for the offer had not been removed because they had considered that offering an alternative gift was the best option from a customer experience perspective. However, after feedback from customers, the staff in Braehead decided to remove the tags advertising the promotion from the section, rather than offer an alternative gift. Superdrug said once the stock of the towel was received, the promotional material was put back out in the store.
They said the promotion began on 28 March and ended on 24 April 2018. The Braehead store received two deliveries of the GWP – the first was for 12 units, which they received on 4 April. The second delivery was for another 12 units and was received on 9 April.
Superdrug said they had reviewed the transactions for the store on 4 and 5 April, and their IT system showed no qualifying purchases having been made that would have triggered the promotion, with the first one taking place on 6 April. They said the Area Manager for the store was unable to recollect any specific issues or why the complainant would have been told there was no stock.
Superdrug said 5,566 units had been given away in 2017 including stock given away on their website, with 52% having been given away in stores. In 2018, 7,000 units were allocated to their stores, and the number of stores stocking the gift had increased by only 40%. They said only 4,876 products were given away during the promotion, of which 2,753 were given away in store.
2. Superdrug said the promotion offered a free primer when a customer purchased two St. Moriz products. They said the promotion was a 'product with purchase' promotion, whereby the free product was already sold by Superdrug, which differed from a 'gift with purchase' promotion where the stock was purchased specifically for the promotion. They said the promotion started on 25 April and ran until 22 May.
Superdrug said a forecast was made to estimate the likely demand for the promotion, based on the brand participation for the products that the customer needed to buy in order to take advantage of the promotion. However, because the free gift was a product already sold by Superdrug, it was able to be replenished. They said they were never out of stock of the product during the promotion.
Superdrug said on the first day of each promotional period, they checked all offers to ensure they were working correctly. They said the offer was working correctly on the first day, but that the reason the complainant had not received the primer was due to an IT issue, which meant that it had not been automatically added to the customer's qualifying order. They said that came to their attention on 9 May and an urgent request had been logged to investigate the issue. They said a workaround had been provided so that the primer could be sent to customers.
Assessment
1. Upheld
The CAP Code stated that promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must also avoid causing unnecessary disappointment.
We understood that the promotion started on 28 March 2018 and ran until 24 April 2018. We noted Superdrug’s comments that there had been issues with stock being delivered at the beginning of the promotion. However, we understood that stock was delivered on 4 April to the store the complainant then visited the following day, and those initial delivery issues did not therefore appear to have played a part in there not having been any hair towels available on 5 April. We considered in any case that they were responsible for all aspects and all stages of their promotions, including ensuring that there was sufficient stock available at the start of and throughout the promotion.
We noted that they had run a similar promotion in 2017 and given away 5,566 units, and in the later promotion 7,000 units were forecast due to additional stores being included. However, we noted that there had been a 40% increase in the number of stores stocking the gift, which we considered was a significant increase. It was also not clear whether there had been similar problems in the previous promotion. Given that there was no stock of the gift available the day after the delivery of stock to the Braehead store, we did not consider that Superdrug had shown they had made a reasonable estimate of the likely response, or had administered the promotion so that individual stores had enough stock.
We noted that Superdrug said when the promotion began, stores which did not have the stock should have offered an alternative gift to customers, but that did not appear to have happened in the complainant’s case. We also noted that they had not logged any qualifying purchases until 6 April, but we considered that if the gift was not available, consumers would be less likely to have gone ahead with the qualifying purchase and that, therefore, might have been the reason. We further noted their comment that all point of sale material indicated that the gift was subject to availability. However, the CAP Code stated that phrases such as “subject to availability” did not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants.
For the reasons above, we concluded that the promotion had not been administered fairly and breached the Code.
The promotion breached CAP Code (Edition 12) rules 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Promotional marketing), and 8.9 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. and 8.10 8.10 Promoters must be able to demonstrate that they have made a reasonable estimate of the likely response and either that they were capable of meeting that response or that consumers had sufficient information, presented clearly and in a timely fashion, to make an informed decision on whether or not to participate - for example regarding any limitation on availability and the likely demand. (Availability).
2. Upheld
The CAP Code stated that promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must also avoid causing unnecessary disappointment.
We acknowledged Superdrug’s comments that the product was not in fact out of stock. However, we understood that it had not been automatically added as a gift to qualifying orders. We noted that the complainant saw the ad on 4 May, and that the issue was not logged until 9 May, leaving several days during which the promotion was still advertised on the site, and we considered it was likely that other consumers who should have received the gift would not have done so due to the IT issue acknowledged by Superdrug. Given that, we considered that the promotion was likely to have caused unnecessary disappointment to participants.
We concluded that the promotion had not been administered fairly and breached the Code.
The promotion breached CAP Code (Edition 12) rule 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Promotional marketing).
Action
We noted that the promotions had ended. We told Superdrug Stores plc that if they intended to run similar promotions in the future, they should ensure that they were administered fairly and avoided causing unnecessary disappointment.
