Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Claims, seen on 24 February 2016, on www.carphonewarehouse.com stated "UK'S LOWEST PRICE^ WE CHECK SO YOU DON'T HAVE TO". The caret linked to small print at the bottom of the page that stated "^UK's Lowest Price on pay monthly is based on new connections on selected networks on 4G tariffs. UK's Lowest Price correct at time of print and it applies to published prices .... Excludes all online retailers without high street presence and other promotional offers ...". Text next to a number of phones stated "AT THE BEST PRICE" and "AT THE BEST PRICE WE'VE CHECKED". Text at the bottom of the page stated "If you find an upgrade or pay monthly deal for less at O2, EE or Vodaphone, we'll match it and pay the equivalent of your first month's standard line rental ...".
Issue
Hutchison 3G UK Ltd challenged whether the following claims were misleading and could be substantiated:
1. "UK'S LOWEST PRICE"; and
2. "AT THE BEST PRICE"
because they understood the claims were based on a comparison with only a selection of competitors and it was not sufficiently clear what prices and products had been compared.
Response
1. & 2. Carphone Warehouse Ltd acknowledged the complaint, but did not provide a substantive response.
Assessment
1. Upheld
The ASA considered that consumers would understand the claim “UK'S LOWEST PRICE” to mean that the advertised phones and plans were the cheapest on the market and could not be purchased from any other retailer across the UK for less. This impression was further reinforced by the claim “WE CHECK SO YOU DON’T HAVE TO”. However, we understood from the linked small print that the claim “UK'S LOWEST PRICE” excluded online retailers without a high street presence and only applied to published prices and not promotional offers. In addition, the claim was based on selected networks on 4G tariffs for new connections only and where the handset was in stock and available for immediate purchase and dispatch.
We considered that the small print was insufficient to counteract the overall impression that Carphone Warehouse had compared all UK retailers and their prices, including promotional offers, to ensure that the price they offered was the lowest in the UK. Notwithstanding that point, we considered that the small print contradicted, rather than clarified, the absolute claim “UK'S LOWEST PRICE”. We also considered that the small print was inadequate to make clear to consumers that the claim only applied to selected networks and new connections, which were important qualifications that should have been in included in the body of the ad.
Because we considered that the claim gave the impression that Carphone Warehouse had compared the prices and offers of all UK retailers in order to ensure that the price they offered was the lowest, which was not the case, we concluded that the claim “UK’S LOWEST PRICE” was likely to mislead consumers.
On this 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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification),
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.
(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).
2. Upheld
We considered that the claim “AT THE BEST PRICE” would be interpreted by consumers to mean that Carphone Warehouse offered the lowest price for the products advertised. However, we understood that the claim was intended to be a price promise – that they would match any cheaper upgrade or pay monthly deal and pay the equivalent of the first month’s standard line rental – rather than a claim that their prices were the lowest.
We considered that if marketers claimed to offer the “best” or “lowest” prices, they needed to beat and not merely match a competitor price and should have a price monitoring and adjustment policy in place to ensure that their prices were always the lowest. A price promise did not justify a lowest price claim in the absence of such monitoring.
Notwithstanding that point, the small print stated that the price promise only applied to three competitors, which we considered was insufficiently prominent to warn consumers of the significant limitation to the offer and contradicted the overall impression that Carphone Warehouse prices were better than all other retailers.
Given this, and because we saw no evidence to substantiate the claim that Carphone Warehouse offered the best price, we concluded that the claim “AT THE BEST PRICE” was misleading.
On this 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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification),
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.
(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).
Action
The ad must not appear again in its current form. We told Carphone Warehouse Ltd to ensure that they made the basis of their comparative claims clear and did not misleadingly imply that they applied to all their competitors if that was not the case.
