Background
Summary of Council decision:
Four issues were investigated, of which two were Not upheld and two were Upheld.
Ad description
A national press ad, seen in various publications on 20 December, stated "No one is cheaper for your big Christmas shop. We're delighted to have won 'The Grocer' magazine's Christmas G33 Pricing Survey". Footnote text stated "Tesco was found to be the best for price, service and availability in an independent survey published by The Grocer magazine on 14th December 2013. Survey was undertaken by Brandview.com on 10th December 2013 and compared 33 goods purchased from ASDA, Morrisons, Sainsbury's, Waitrose and Tesco. For full article and survey results, see The Grocer print edition published on 14th December 2013 or online at thegrocer.co.uk/grocer-33/prices". The ad also included images of groceries including Brussels sprouts, a Christmas pudding and a bottle of champagne, and the text "Source: The Grocer The Grocer 33 was compiled by BrandView on 10th December 2013".
Issue
ASDA challenged whether the claim "No one is cheaper for your big Christmas shop" was misleading and could be substantiated because:
1. they understood it was based on 33 Christmas products when purchased on 10 December, and was not representative of consumers' big Christmas shop;
2. they understood it to be a future lowest price claim;
3. the comparison only included five retailers; and
4. to verify the comparison consumers had to either purchase a print version of, or online subscription to, The Grocer.
Response
1. Tesco Stores Ltd explained that The Grocer's Christmas Survey concluded that Tesco was the cheapest of the major retailers, including ASDA, for groceries typically included in a consumer's Christmas shop. They provided a copy of the Christmas Survey and an accompanying article from The Grocer and highlighted that the headline of the article was "Tesco is the cheapest at Christmas".
Tesco said the Survey was carried out by a reputable and independent magazine and the ad simply repeated the Survey's findings. They said they had limited knowledge regarding the methodology, but noted that the Survey covered a wide variety of items typically bought as part of a customer's Christmas shop, such as a turkey, Christmas pudding, Brussels sprouts, champagne and a Quality Street tin. They said it was clear from The Grocer article that the purpose of the Christmas Survey was to objectively compare leading retailers' offerings to consumers at the date it was carried out, and the items compared were chosen because they were representative of the "big Christmas shop" that many customers made at that time of year.
In addition, Tesco said the ad clearly communicated key features of the Survey so consumers were able to make up their own minds about its validity. They highlighted that the ad stated that the Survey compared 33 goods and displayed images of some of the products from that Survey to exemplify what was being compared. The full list of goods in the "shopping basket" for the Survey was set out in The Grocer, and so could be found in the magazine or using the website address given in the footnote text.
2. Tesco did not believe that consumers would understand the claim to be a future lowest price claim. They said the ad accurately reported the findings of the Survey, while making clear that the Survey itself constituted a past comparison carried out on a particular past date.
They highlighted that the ad clearly stated that Tesco won the "Christmas G33 Christmas Survey", and that the Survey was compiled on 10 December 2013. They explained that The Grocer published the results on 14 December 2013, and that the ad was published on 20 December 2013. They did not believe that that was an unreasonably long period. They also believed the ad was accurate because there was no subsequent Christmas G33 Survey the following week, and that it was the only G33 Survey upon which a claim about a "Christmas shop" could be made, as it was the only one that specifically analysed a basket of typical Christmas grocery goods.
3. Tesco believed that the UK's five largest supermarkets did constitute a sufficient sample size for the claim. They said according to data sourced by a global independent market research company for the trading week in question, those five supermarkets collectively held more than 80% of the market share of grocers. Regardless of that, Tesco highlighted that the ad stated which supermarkets were included in the Survey and that further information regarding the methodology used was available to consumers via the magazine or using the web address given.
4. Tesco said the ad clearly identified that The Grocer's Christmas Survey was the source used for the basis of the claim "No one is cheaper for your big Christmas shop". Details of the source were clearly set out in large bold font at the top of the ad and there was a large "The Grocer" logo featured on the ad, as well as a sub-line explaining what Tesco had won: "We're delighted to have won 'The Grocer' magazine's Christmas G33 Christmas Survey". Further, footnote text stated "For full article and Survey results, see The Grocer print edition published on 14th December 2013 or online at thegrocer.co.uk/grocer33/prices". Therefore, they believed that the ad made clear the basis of the comparison.
Tesco also believed that the price comparison in the ad was verifiable by consumers, because the source of the comparison information was clear and the ad provided details of how consumers could gain access to the Survey results should they wish to verify the information. As noted in the ad, Tesco stated that consumers could locate the Survey results in a hard copy of The Grocer or online at the website address given. They also said The Grocer publicised the results of the Christmas Survey widely and the information about Tesco being the cheapest retailer according to the Survey, received widespread press coverage. They provided some extracts from the relevant The Grocer issue, including an article which presented the full results.
Assessment
1. Not upheld
The ASA understood that ASDA objected to the claim because they did not believe it was clear on what basis the price comparison was reflective of consumers' "big Christmas shop(s)". They believed that by referring to "your big Christmas shop" as opposed to "the big Christmas shop", the ad implied that Tesco's prices were lower than their competitors' for all products that a consumer might purchase for their Christmas shop, not simply those selected as part of The Grocer G33 survey. We noted, however, that the ad made a number of references to the fact that the claim was based on the findings of The Grocer's 2013 Christmas G33 Survey and that footnote text explained that the Survey, undertaken on 10 December 2013, compared 33 goods purchased at five major retailers. We also noted that the ad included images of a few products traditionally associated with, and popular at, Christmas, including a bottle of champagne, Brussels sprouts and gravy. We considered that most consumers would understand that the claim "your big Christmas shop" related to the 33 items, some of which were featured in the ad, that had been selected by The Grocer and were purchased in higher volumes around Christmas. Therefore, we considered that consumers would understand the claim "your big Christmas shop" to relate to the products selected by The Grocer as representative of a Christmas shop, not as an absolute claim that Tesco's prices for all products a consumer might purchase at Christmas were lower than their competitors'. In light of that, we concluded that the claim was not misleading.
On that point, 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.
and
3.35
3.35
They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.
(Comparisons with identifiable competitors) 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.
(Price comparisons), but did not find it in breach.
2. Not upheld
We noted that text at the top of the ad stated "The Grocer 33 was compiled by Brand view on 10th December 2013" and that further text below the main claim stated "We're delighted to have won 'The Grocer' magazine's Christmas G33 Pricing Survey". We considered that consumers would understand that the claim "No one is cheaper for your big Christmas shop" was based on the fact Tesco had won The Grocer's Christmas G33 Pricing Survey which related to prices collected on 10th December 2013. We did not consider that consumers would believe the claim to refer to other weeks in December. Although we appreciated that all the selected retailer's prices might have changed since the data had been collected, and that consumers would have varying habits when purchasing their Christmas groceries, including purchasing items throughout the month or closer to Christmas day, we considered that consumers would understand that the claim was based on The Grocer Survey conducted on 10 December 2013. We therefore concluded that the claim would not be understood as a future lowest price claim, and was not misleading.
On that point, 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.
and
3.35
3.35
They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.
(Comparisons with identifiable competitors) 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.
(Price comparisons), but did not find it in breach.
3. Upheld
We understood that, as set out in the footnote text, The Grocer G33 Christmas Survey compared the prices of ASDA, Morrisons, Sainsbury's, Waitrose and Tesco. We considered, however, that the claim "No one" implied that no other food and grocery retailers, were cheaper than Tesco for the basket of goods comparison, and therefore, that the unlinked footnote text contradicted, rather than clarified, that claim. Because we had not seen any evidence to confirm that Tesco's total price for the goods selected was cheaper than all other food and grocery retailers, we concluded that the claim 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.
(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.
and
3.35
3.35
They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.
(Comparisons with identifiable competitors) 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.
(Price comparisons).
4. Upheld
We noted that footnote text in the ad directed consumers to either the print copy or online version of The Grocer published on 14 December 2013. We also noted that the results printed by The Grocer listed all the items included in the comparison, stated whether they were own label or branded, included the price at which they had been purchased in each of the five retailers and explained that the data had been compiled by BrandView on 10 December. We considered that that information was sufficient to allow consumers to understand the composition of the comparison and how it had been carried out. We understood, however, that full results of the Survey, including all the items included and the prices recorded for each retailer, could only be accessed if a consumer purchased a print version of the magazine, or paid for an online subscription. Therefore, we considered that the details of the comparison were not readily accessible, and that the comparison was not verifiable. Because of that, we concluded that the claim 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. (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. and 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with identifiable competitors).
Action
The ad must not appear again in its current form. We told Tesco Stores Ltd to ensure they held sufficient evidence to substantiate their claims in future, and that consumers were able to verify their comparisons.
