Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
Three email ads for The Hut:
a. An email from lookfantastic was received on 2 October 2015 and stated “FREE Kerastase Accessories gift set including makeup bag and rose gold mirror worth £20 when you spend £50 on brand. Plus save up to 30% on Kerastase now and enjoy a further 10% off* when you click SHOP NOW below and use code KERAS”. The small print stated “*Offer excludes Kerastase duos and bundles”. Further text stated “Usual Exclusions apply” with a hyperlink to exclusions listed on the website.
b. An email from The Hut Group was received on 26 November 2015 and stated “PRE BLACK FRIDAY EXTREME FLASH SALE. EXTRA 25% OFF.” Further text stated “Usual exclusions apply, email exclusive, cannot be used in conjunction with cash back sites”. The small print stated “*Excludes electronics, entertainment, consoles, photo gifts, LEGO & Selected Homeware…*Unless otherwise stated usual discount code exclusions will apply. Please refer to website for further details”.
c. An email from The Hut received on 27 November included text at the top of the ad which stated “FREE STANDARD UK DELIVERY WHEN YOU SPEND OVER £20”.
Issue
The ASA received two complaints:
1. One complainant, who understood that Kerastase was excluded from the promotion in ad (a), challenged whether the ad was misleading.
The second complainant challenged whether:
2. ad (b) was misleading, because it did not make clear what exclusions applied to the offer and they understood exclusions included those items where The Hut were selling the product at a lower price than the RRP; and
3. the claim “FREE STANDARD UK DELIVERY WHEN YOU SPEND OVER £20” in ad (c) was misleading, because they understood that it did not apply to all products, including those items where The Hut were selling the product at a lower price than the RRP.
Response
1. The Hut.com Ltd t/a The Hut said that the first claim “save up to 30%” referred to existing discounts on Keratase products on www.lookfantastic.com, and that customers did not need a discount code to take advantage of those reduced prices, which related to savings on the RRP. They provided a screenshot of how those savings were displayed on the website. They said that the complainant did receive the “further 10% off” referred to in the ad, but not an additional 30% off at checkout because the products had already been reduced by that amount compared to the RRP. They provided a report to show that a large number of customers had used the 10% off discount code.
2. The Hut said that the discount code in the ad was eligible for use on a number of their websites and they therefore did not include a link to the applicable discount code exclusions page for each individual site in the main body of the email, but instead requested customers check the relevant website. They understood that the complainant in question had intended to use the code on www.thehut.com and said that website gave information on a discount exclusion page about which products were not eligible for discounts, which included “discounted items”.
3. The Hut said that the free delivery offer applied to all orders over £20 on www.thehut.com and there were no exclusions. They provided an example of an order where the offer had been applied. They also provided a report of customers who had purchased Puma trainers over £20 and had received free delivery.
Assessment
1. Upheld
The ASA considered that consumers would understand from the claim “Plus save up to 30% on Kerastase now and enjoy a further 10% off* when you click SHOP NOW below and use code KERAS” in ad (a) that prices on Kerastase products on www.lookfantastic.com were reduced from their usual prices by up to 30%, and that by using the discount code customers could save an additional 10% on that saving. We considered the ad made sufficiently clear that duos and bundles were excluded from the 10% offer. We understood that the 10% discount code was valid and had been applied to customers’ orders. However, the claim “save up to 30% on Kerastase now” did not refer to savings on the prices usually charged by www.lookfantastic.com but to claimed savings on RRP prices. Notwithstanding that savings claims with RRPs would need to be supported by evidence that the RRP represented the price at which the product was generally sold by other retailers. We did not consider that in this context the claim “save up to 30% on Kerastase now” made clear that this was a reference to savings against an RRP. We therefore concluded that the ad was misleading.
On this point ad (a) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
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).
2. Upheld
We considered that consumers would understand from the claim “PRE BLACK FRIDAY EXTREME FLASH SALE. EXTRA 25% OFF” that by using the discount code in the ad they would be able to obtain 25% off the usual price of products on The Hut websites. We considered that, in the context of the ad including the description as a “PRE BLACK FRIDAY EXTREME FLASH SALE”, consumers would expect the offer to apply to a large proportion of the products on each website, but that some exclusions might apply. The ad included smaller text underneath the main body of the email which included “Usual exclusions apply” and we considered that clarified that some exclusions did apply to the offer. Smaller print at the bottom of the email gave some further information about specific products which were excluded by stating “*Excludes electronics, entertainment, consoles, photo gifts, LEGO & Selected Homeware…*Unless otherwise stated usual discount code exclusions will apply. Please refer to website for further details”. However, we considered that exclusions from the offer were material information which should have been stated in the ad itself, which was not constrained by space.
Notwithstanding that we did not consider that the ad contained sufficient information about exclusions, we also considered that the main claim implied that the offer applied to a large proportion of products on each website. We understood that for each of The Hut websites, a list of exclusions applied to the offer (the ‘usual exclusions’). On www.thehut.com entertainment products (games, DVD and blue-ray), pre-orders, electrical and technology products, products in special offers and “marked down” products were excluded, along with items from a large number of brands. We also understood that “marked down” products which were excluded from the offer included items where the price was described as a saving on the RRP, and noted that in some product categories this constituted the majority of products. It therefore appeared that the offer was not applicable to a large proportion of products on each website, and there were significant numbers of exclusions in terms of product categories, brands and products where they were marked with an existing savings claim. Given that the ad referred to an “extra” 25% off, we also considered that excluding products marked as having an existing saving, further contradicted that claim. We therefore concluded that the ad was misleading.
On this point ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
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) and
8.17
8.17
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:
(Significant conditions for promotions).
3. Not upheld
We considered that, in the absence of qualification, consumers would expect the claim “FREE STANDARD UK DELIVERY WHEN YOU SPEND OVER £20” to apply to all purchases over £20. The Hut said that no exclusions applied to the offer and had provided evidence of orders where the free delivery offer had been applied. We therefore concluded that the claim was not misleading.
On this point we investigated ad (c) under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
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) and
8.17
8.17
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:
(Significant conditions for promotions), but did not find it in breach.
Action
Ads (a) and (b) must not appear again in the form complained of. We told The Hut that when referring to savings they should make clear whether the saving was based on a comparison with an RRP or against their usual price (and hold appropriate documentary evidence of those savings in either case). We also told them not to imply that offers would apply to a large proportion of the products if that was not the case and to ensure exclusions to offers were listed in future emails in full. In addition, if products where an RRP savings claim was made were excluded from offers, they should consider what proportion of products this would affect and whether it was likely to render an offer misleading, and ensure that the exclusion was clearly stated in ads.
