Ad description
A regional press ad for Tesco's Price Promise featured an aubergine, pint of milk, a jar of Colman's Mustard, a bottle of Heinz Tomato Ketchup, a pot of Yeo Valley yoghurt, a jar of Marmite, a bag of plain flour and a banana. It was headlined "You won't lose out on big brands, fresh food or own-label. If your comparable grocery shopping is cheaper at Asda, Sainsbury's or Morrisons, we'll give you a voucher for the difference at the checkout or online. To qualify, you need at least ten different items including one comparable item in your basket." Small print stated "Max voucher value £10. Exclusions may apply due to difference in size, weight, volume, flavour or quality. Selected UK stores. Prices checked at Asda.com, Sainsburys.co.uk and Morrisons (in store). Delivery charges apply online. Full terms and conditions at tesco.com/promise".
Issue
Sainsbury's challenged whether the claim "You won't lose out on big brands, own-label or fresh food" was misleading in relation to own-label and fresh food as important product attributes had not been taken into account. Sainsbury's considered that some of the products compared were not comparable and furthermore considered that the basis of the price match policy had not been made clear.
Response
Tesco Stores Ltd (Tesco) said price was a very important part of the fair comparison consumers made between supermarkets. They believed their Price Promise's hassle-free at till transparency across brands, own label and fresh produce, as well as online grocery, was in consumers' interests. It had been running online since February 2011, comparing prices with Asda and in July 2012, it began comparing prices with Sainsbury's and Morrisons. Until March 2013, Tesco customers based in Great Britain entered their till receipt number online to receive their voucher. The Price Promise was based on comprehensive product matching guidelines and they ensured they were fair, common sense comparisons which made sense to consumers. They compared prices by carrying out daily web scans of the Asda and Sainsbury's websites and twice weekly in-store price checks in three Morrison's stores.
Branded products could be matched on an identical basis, e.g. Heinz Top Down Tomato Ketchup 460 g sold at Tesco to Heinz Top Down Tomato Ketchup 460 g sold at Sainsbury's. When identifying comparable products for own-label goods, they began matching products according to "brand hierarchy", i.e. Sainsbury's Basics with Tesco Everyday Value products. As part of that matching process, they checked if there was an exact match, e.g. Sainsbury's Paracetamol x 16 (500 mg) to Tesco Paracetamol x 16 (500 mg). Where a match for own-label products and fresh produce could not be found, those products were matched with ones which met the same need and/or were intended for the same purpose, e.g. Sainsbury's Taste the Difference Berry Meringue Roulade 450 g (which contained 4% raspberries and 4% blackcurrants) to Tesco Finest Raspberry Roulade 450 g (which contained 7% raspberries). In addition, they might match own-label products if the product was not the same, but there was a minor difference in the pack size (within 10%).
Tesco explained where there was some difference in relation to non-price elements of an own label or fresh produce, e.g. provenance or ethics, they would still match those products, provided that difference was not key in a customer's decision making process and it was not sufficient to make it a non-match, e.g. Sainsbury's Basics Tea Bags x 80 Fairtrade to Tesco Everyday Value Tea Bags x 80. However, where that non-price element was a key factor, e.g. provenance, in a customer's purchasing decision for own label and fresh produce, they matched on a like-for-like basis, e.g. Sainsbury's Melton Mowbray Mini Pork Pies x 6 (300 g) to Tesco Melton Mowbray Mini Pork Pies x 6 (300 g).
All other products were deemed to be not matched which included own label products where there was a significant difference in relation to non-price elements, e.g. provenance, ethics, quality, flavour and size. For example, Sainsbury's Spanish Olive Oil, Extra Virgin 500 ml to Tesco Greek Olive Oil, Extra Virgin 500 ml (country of origin); Sainsbury's Taste the Difference Cumberland Chipolatas (significant welfare difference) x 12 (375 g) to Tesco Finest Cumberland Chipolatas x 12 (375 g); and Sainsbury's Ready Salted Crisps 6 x 25 g to Tesco Salt and Vinegar Crisps 6 x 25 g (different flavour).
Tesco's website stated "... we identify the key characteristics of products including flavour, whether it's organic, Fairtrade, low fat or eco-friendly. We ensure that matches are only made where there is no artificial advantage to any retailer". Tesco said if the fact a product is Fairtrade was the key characteristic of that product, they did not match it against a non-Fairtrade product. Likewise, they did not match organic food with non-organic food.
Tesco confirmed where a non-price element was key, they only matched where both products had that element, e.g. Sainsbury's 100% Pressed Apple Juice 1 litre matched with Tesco Pressed Apple Juice Not from Concentrate 1 litre because both products were not made from concentrate and Sainsbury's Melton Mowbray Mini Pork Pies x 6 (300 g) were matched with Tesco Melton Mowbray Mini Pork Pies x 6 (300 g), as both were from Melton Mowbray.
Tesco stated they did not match products where the non-price element of the two did not match and that element was the determining factor for the customer. For example, they did not match Sainsbury's Somerset Brie 160 g to Tesco Somerset Brie Lighter 160 g because the Tesco product had a substantially lower fat content.
Where the sourcing of ingredients for a particular product in the British Isles was the key factor, Tesco reflected that in their matches. They had regard for the results of their own customer research when determining whether an ingredient's provenance would preclude them from identifying a match under the Price Promise. However, they did not consider that as a matter of principle, products containing British and Irish ingredients could only be matched with competitor products of the same provenance. They did not believe customers would consider that to be the correct comparison to make and also that for the majority of customers, the product's country of origin would only be a minor factor in a customer's decision-making.
Tesco believed if a product had a certain certification, e.g. Fairtrade that was not always the determining factor in a customer's decision making process, especially where the retailer has taken a decision to only stock products with that certification, which they understood to be the case with Sainsbury's. For example, Sainsbury's Basic 80 Tea Bags Fairtrade would always be matched with Tesco Everyday Value 80 Tea Bags, regardless of whether one is Fairtrade. They believed the Fairtrade element was not the determining factor and that the two products were indeed comparable and interchangeable. Notwithstanding that certification, they believed the two products were comparable in every other way.
The Price Promise's terms and conditions stated Tesco only matched comparable grocery products, which were defined as "an identical branded grocery product or a similar own label equivalent grocery product. For similar own label equivalent grocery products to be included they must meet the same needs or be intended for the same purposes". Therefore, Tesco would not match two products of different flavours as they did not meet the same need. In addition, products of different sizes, weight or volume had been excluded. They also did not match products of different quality, i.e. they only matched their Everyday Value with Sainsbury's Basics, Tesco own label with Sainsbury's own label and Tesco Finest with Sainsbury's Taste the Difference.
Assessment
Not Upheld
Sainsbury's asserted that a separate Tesco ad published on 3 March – which was shortly before the ad under investigation appeared – had the intended purpose of telling consumers that Tesco recognised customer interest in non-pricing, ethical type considerations. They pointed to the specific phrases "... We know the more we work with British farmers, the better ...", "... And now we're moving on to our fresh chickens. By July, they'll all be from UK farms too. No exceptions ...", and "We know that, no matter what you spend, everyone deserves to eat well ..." which they believed highlighted Tesco's admission of the importance of an ingredient's provenance and recognition that was a major contributing factor to a consumer's purchasing decision.
Tesco said the ad referred to above was an attempt to allay customers' concerns about the complexity of supply chains and to restore trust in the UK food industry following the concerns relating to the presence of horsemeat in some of their products. They added it was not about focusing attention on their ingredients' provenance, rather it highlighted their commitment to build a more resilient supply chain.
While the ASA acknowledged that ad and the one under investigation appeared at similar times, we considered consumers were unlikely to see them as part of the same campaign. The ads had different commercial messages and there was nothing in either ad to lead consumers to believe they were part of the same campaign. One ad was about Tesco's supply chain and what changes they were making to it, and was likely to be seen in that way, while the other (which was the subject of the investigation) was likely to have been seen as one about a promise to compare prices.
We considered consumers were likely to interpret the claim "You won't lose out on big brands, fresh food or own-label" as a promise to compare the cost of their shopping with Tesco to the other named retailers. The Code permitted advertisers to make comparative claims based on price and it required them to make the basis of that comparison clear. We considered the reference to "comparable grocery shopping" with Asda, Sainsbury's or Morrisons, in the context of that claim, would be understood as meaning that Tesco had compared brand with brand, fresh food with fresh food and Tesco's own-label products with its competitors' own-label products. We understood that to be the case.
We noted Tesco's guidelines for identifying matches for the Price Promise and we understood that where no matches could be found, those products were excluded from the comparison. It was clear the ad made a promise to compare prices and it explained clearly that if a qualifying shop – defined as one with at least ten different products including one comparable product – was more expensive at Tesco than it would have been at Sainsbury's, Asda or Morrisons, customers would receive a voucher for the difference. Small print in the ad also stated that products may be excluded on the grounds of difference in size, weight, volume, flavour or quality.
We understood that products were excluded when there was a difference of more than 10% in size, weight or volume. Where that difference was less than 10%, the products were included in the comparison and in those circumstances, we saw evidence that the occasions where it was to Tesco's advantage and disadvantage to include them were evenly split.
Sainsbury's were concerned that non-price elements of own label products had not been taken into account or given sufficient weighting by Tesco when identifying matches for the comparison. They understood those elements were important to consumers and that reflected the outcome of their own customer research. They highlighted a few products for which they believed the differences in provenance of ingredients and certification were of such significance, the products could not be considered as meeting the same need or intended purpose. Therefore, they could not be matched with a Tesco equivalent product.
Tesco had matched its chicken korma curry, which Sainsbury's understood contained chicken sourced from outside the UK whereas the equivalent product from Sainsbury's was made with 100% British chicken. Sainsbury's had the same concerns about Tesco matching its Everyday Value ham (made with pork sourced from the EU) with their Basics ham (made with British pork). Tesco said that based on the findings of its own research, provenance of ingredients was not a key factor for their consumers on certain products, which was the case with those two particular products. Consequently, Tesco identified and matched the two products under the Price Promise. We agreed with Tesco that provenance was unlikely to be a key factor for these two products, a ready meal (chicken korma curry) and a budget choice food (ham).
Sainsbury's also had concerns about Tesco comparing their cod and haddock fillets to Sainsbury's equivalent products which were MSC (Marine Stewardship Council) certified, whereas Tesco's were not. They had similar concerns about Tesco comparing a dozen free-range eggs to Sainsbury's free-range Woodland eggs. In relation to the cod and haddock fillets, Tesco's confirmed that all their fish came from MSC accredited fisheries. They understood that the Woodland eggs label was exclusive to Sainsbury's and that it meant the free-range chickens had been reared in woodland sponsored by the Woodland Trust. Tesco confirmed that all their eggs came from Freedom Food accredited farms. However, Tesco did not label their MSC certified or Freedom Food accredited because to do so involved paying for a licence to do so, something which they chose not to do. We considered these products were comparable.
Tesco confirmed that where a non-price element led to a difference, but they believed it was not the determining factor in a purchasing decision, they did identify and match products. However, where that element was significant and likely to affect a customer's decision to buy that product, no match was identified for the Tesco product. As part of that process, Tesco also had regard for the findings of its own and independent, supplier-led research in respect of provenance and certification for fish.
Sainsbury's believed that own-label products which were different on the grounds of animal welfare or provenance of the ingredients, for example, were incomparable and could not be considered as meeting the same need. The Code required advertisers to compare goods which met the same need or intended purposes. We considered the "same need" test had been met under the Code given that food such as meat, eggs or fish were interchangeable and were intended for the same purpose. While we acknowledged there would be differences in animal welfare and country of origin for the ingredients, we were satisfied that Tesco had taken those elements into account when identifying and matching products and had compared on the basis of them meeting the same need.
Sainsbury's were further concerned that own-label products and fresh foods could not be compared because of a difference in quality. However, the small print stated that products may be excluded from the comparison on the grounds of quality and Tesco provided examples of products which had been excluded for that reason. Furthermore, Tesco compared within the same "tier" of produce, i.e. Tesco Everyday Value to Sainsbury's Basics, Tesco own label with Sainsbury's own label and Tesco Finest with Sainsbury's Taste the Difference to help ensure products of different qualities were not matched.
The Code allowed advertisers to objectively compare one or more material, relevant, verifiable and representative feature of products which could include price. We considered that Tesco had objectively compared price and the ad made clear that Tesco were comparing their own prices against brands, own labels and fresh produce prices at Sainsbury's, Asda and Morrisons and that some products would be excluded from the comparison. While we noted Sainsbury's concerns, in the context of an ad which explained clearly the basis of Tesco's price comparison, we concluded the claim "You won't lose out on big brands, own-label or fresh food" had been substantiated and was not misleading. In addition, we concluded the basis of the comparison was clear and did not breach the Code.
We investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(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),
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
3.34
3.34
They must compare products meeting the same need or intended for the same purpose.
3.35
3.35
They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.
and
3.39
3.39
Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises.
(Comparisons with Identifiable Competitors) but did not find it in breach.
Action
No further action necessary.
