Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
a. A page on Swytch’s website https://order.swytchbike.com/, for a kit that converted bikes into electric bikes, seen on 11 September 2022, stated “EARLY ACCESS 60% OFF – ENDS IN 1 DAY”, “13,709 SOLD ALREADY” and “291 LEFT”. It further stated that the kit price was £524 and included the crossed-out text “£1,299 RRP”.
b. On 27 October 2022, the same webpage stated “LAST CHANCE – 60% OFF 13:15:46”, “28,694 SOLD ALREADY” and “1,306 LEFT”.
c. On 28 October 2022, the webpage stated “LAST CHANCE – 60% OFF 5 DAYS”, “28,703 SOLD ALREADY” and “1,297 LEFT”.
Issue
1. The complainant, who understood that the number of items remaining had increased from 4 to 291 on 11 September 2022, challenged whether the claim “291 LEFT” in ad (a) was misleading.
2. The complainant also challenged whether the countdown clocks and the item countdown in ads (a), (b) and (c) misleadingly implied that the promotion was time and stock limited, when the same promotion was still available shortly after the countdowns ended.
3. The ASA challenged whether the claim “60% OFF” in ads (a), (b) and (c) and the RRP of £1,299 in ad (a) were misleading and could be substantiated.
Response
1., 2. & 3. Swytch Technology Ltd t/a Swytch said that they ran a pre-order model where they offered products at trade price, which was a significant discount on the recommended retail price (RRP), to customers who were willing to pay in advance and wait for manufacturing and delivery.
They said that they had a limit on how many units they could offer on those terms, which was linked to their production batches, and the stock counter showed a true representation of how many units were left in a given batch. They explained that this feature was introduced partly due to previous complaints from consumers who had missed out on the offer because they were not aware of the limited availability.
They said that in early 2022, before stock ran out, they continued to sell the previous generation of the kit at the full RRP. As soon as new stock of the new generation kit arrived they would continue to sell at the full RRP. The 60% pre-order discount ran from 15 September to 14 October 2022. They said that they sold kits at full price in their separate shop, Ebay and Amazon. They considered that their advertised RRP was true and fair, as it was competitive with other similar products and backed up by real sales.
Swytch did not comment on the use of the countdown clocks in their response.
Assessment
1. & 2. Upheld
Ad (a) featured the claims “EARLY ACCESS 60% OFF – ENDS IN 1 DAY” and “13,709 SOLD ALREADY 291 LEFT”. Ad (b) featured the claims “LAST CHANCE – 60% OFF 13:15:46” and “28,694 SOLD ALREADY 1,306 LEFT” and ad (c) featured the claims “LAST CHANCE – 60% OFF 5 DAYS” and “28,703 SOLD ALREADY 1,297 LEFT”.
The ASA considered that consumers would interpret all three ads to mean that the opportunity to purchase a kit at a 60% discount would expire either at the end of the time period referenced in the ad (i.e., in one day, 13 hours 15 minutes, or five days) or when the remaining number of kits was depleted. We considered consumers would expect the price of the kits to then return to the price at which they were generally sold. In the case of ad (a), they would understand that the term “EARLY ACCESS” referred to the discount being offered only on the basis of pre-ordering kits in “Batch 2” that were expected to be delivered in March 2023. In the case of ads (b) and (c), the phrase “LAST CHANCE” reinforced the impression that the sale was time limited and would not be repeated.In relation to ad (a), we understood from the complainant that on 10 September, the website stated that nine items were left. They said that on the morning of 11 September the ad stated that four items were left, at which point they made an order. When they looked back at the website later that day, it stated that 291 items were left. Swytch had stated that this number was linked to production batches and that the number of items in those batches was limited. However, we had not seen any evidence substantiating that the figures stated on the website were a true reflection of the number of items available for order at each point that the complainant visited the website.
Swytch had stated that the 60% discount was only offered between 15 September and 14 October 2022, but they had not provided any evidence to support that assertion. We further noted that all three ads were seen outside of that period. We therefore understood that new order batches opened as soon as the previous batch was depleted, and that the countdown clocks restarted as soon as they finished; in both cases the “60% OFF” discount continued.
The ads therefore misleadingly implied that the 60% discount would soon end, at which point the price would revert to the usual selling price, when that was not the case. We considered that was likely to pressurise consumers into making a swift transactional decision, including purchasing products, without giving their purchase the due consideration they normally would because of the misleading implication in the ad. For those reasons, we concluded the ads breached the Code.
On those points, ads (a), (b) and (c) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.31 (Availability), and 8.17.4.e (Significant conditions for promotions).
3. Upheld
We considered consumers would understand the claim “60% OFF” in all three ads to refer to a genuine saving of 60% against the price at which the Swytch bike kit was generally sold. Ad (a) additionally featured the crossed-out wording “£1,299 RRP” next to the price of “£524”. We considered that consumers would understand the RRP to be the price at which the Swytch bike kit was generally sold, and would therefore expect the 60% discount to represent a genuine saving against that RRP.
We understood that throughout the period between ad (a) and ad (c) being seen (47 days in total), the product had been advertised with a 60% discount. Swytch had not provided any sales data to verify that the product had been sold at the price of £1,299, from any of their online stores, during that time or at any time previously. We considered they therefore had not demonstrated that the RRP of £1,299 stated in ad (a), or the reference price implied by the “60% OFF” claim in ads (b) and (c), was the price at which the product was generally sold.
Therefore, because we had not seen evidence that the savings claim represented a genuine saving against the usual selling price of the product, we concluded the savings claims and RRP were misleading.
On that point, ads (a), (b) and (c) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) 3.17 (Prices) and 3.40 (Price Comparisons).
Action
The ads must not appear again in the form complained about. We told Swytch Technology Ltd t/a Swytch to ensure their future savings claims did not mislead and were substantiated against the usual selling price of their products. We told them not to state savings against RRPs unless it could be evidenced that the product was generally sold at that price. We also told them to ensure their ads did not misleadingly imply that discount offers were stock or time-limited, or that consumers needed to act more quickly than was necessary to take advantage of an offer.
CAP Code (Edition 12)
3.1 3.7 3.17 3.31 3.40 8.17.4.E
