Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
Regional and local press ads for The UPVC Company, which fitted doors, seen in January, February, March and April 2016:
a. This ad featured text that stated “NOW ON! MUST END MON 18TH. FOR THIS WEEK ONLY! CHOOSE ANY OF THESE STYLES FOR ONLY £365 FULLY FITTED*** … ORDER BEFORE 18TH JANUARY AND GET A FREE £20 M&S VOUCHER …”.
b. This ad featured text that stated “THE GENUINE JANUARY SALE. FINAL WEEK MUST END 31ST JANUARY. CHOOSE ANY OF THESE STYLES FOR ONLY ***£365 FULLY FITTED … ORDER BEFORE 31ST JANUARY AND GET A FREE £20 M&S VOUCHER …”. At the bottom of the ad was small print.
c. This ad featured text that stated “EXTENDED FOR ONE WEEK ONLY! MUST END 7TH FEBRUARY! CHOOSE ANY OF THESE STYLES FOR ONLY £365 FULLY FITTED *** … ORDER BEFORE 7TH FEBRUARY AND GET A FREE £20 M&S VOUCHER …”.
d. This ad featured text that stated “EXTENDED FOR ONE FINAL WEEK! MUST END 15TH FEBRUARY! CHOOSE ANY OF THESE STYLES FOR ONLY £365 FULLY FITTED fitted*** … ORDER BEFORE 15TH FEBRUARY AND GET A FREE £20 M&S VOUCHER …”.
e. This ad featured text that stated “THE GENUINE SALE. WINTER SPECIALS FOR SEVEN DAYS ONLY MUST END MONDAY 22 … CHOOSE ANY OF THESE STYES FOR ONLY £395*** FULLY FITTED …”.
f.This ad featured text that stated “THE GENUINE SALE! WINTER SPECIALS FOR SEVEN DAYS ONLY! MUST END MONDAY 29TH … CHOOSE ANY OF THESE STYLES FOR ONLY £395*** FULLY FITTED …”..
g. This ad featured text that stated “THE GENUINE SALE! WINTER SPECIALS FOR SEVEN DAYS ONLY! MUST END MONDAY 7TH … CHOOSE ANY OF THESE STYLES FOR ONLY £395*** FULLY FITTED …”.
h. This ad featured text that stated “THE SPRING SALE! NOW ON! THIS WEEKS [sic] SPECIALS MUST END MONDAY 11TH … CHOOSE ANY OF THESE STYLES FOR ONLY £395*** FULLY FITTED …”.
Issue
1. South Ayrshire Trading Standards and North Lanarkshire Council challenged whether the “must end” dates in ads (a) to (h) were misleading and could be substantiated.
2. South Ayrshire Trading Standards, who understood that the “free” voucher was subject to consumers paying a higher price for the product, challenged whether the “free” claims in ads (a) to (d) were misleading.
3. South Ayrshire Trading Standards challenged whether the basis of the claims that the prices in ads (a) to (d) were reduced were made sufficiently clear.
Response
1. The UPVC Company stated that their promotions normally ran for three to four weeks offering a range of special offers which changed weekly.
They stated that the January promotion was extended for two weeks because of customer demand. They further stated that if a customer had missed a particular offer by a few days, they still honoured the promotional price that was advertised.
The UPVC Company stated that although they might use the same doors from the January promotion in subsequent offers, they would not, however, be sold at a lower price.
2. The UPVC Company stated that they offered customers an M&S voucher with their purchase or an equivalent discount. They stated that all their ads had a disclaimer at the bottom, which read "Voucher Offer or equivalent discount applies - Prices shown include all discounts". The UPVC Company stated that if they had a door on offer at an advertised price of £395, that would be the total price the customer paid if they took a discount in lieu of the voucher. However, they stated that in instances where customers had misunderstood the offer, they had given them the £20 voucher as a gesture of goodwill.
3. The UPVC Company stated that the quoted prices were discounted from the manufacturer’s suggested retail prices.
Assessment
1. Upheld
The ASA noted that closing dates must not be changed unless circumstances outside the reasonable control of the promoter made it unavoidable, as required by the CAP Code.
The offer in ad (a) featured text that stated “Choose any of these styles for only £365 fully fitted” and showed images of six different doors, which were “made to measure” and came with a "10 year guarantee” and “free” £20 M&S gift voucher. We noted that although the offer in ad (a) stated “must end Mon 18th. For this week only!”, ad (b) showed three of the same doors but with a new closing date of 31 January. We considered that this showed that the closing date advertised for the promotion in ad (a) had been extended.
We considered that consumers were likely to understand that in order to take advantage of the offer in ad (a), they would need to make their purchase by the advertised end date, as otherwise, the promotional price for the doors would revert back to their normal selling price. However, we understood that this was not the case as the offer had been extended to 31 January and, according to the advertiser’s response the offer continued to be marketed with a promotional price of £365 for an additional two weeks after that date, with text in ads (c) and (d) that stated, “Extended for one week only! Must end 7th February!” and “Extended for one final week! Must end 15th February!” respectively. Furthermore, we understood that consumers could still take advantage of the offer for several days thereafter.
The advertiser had not provided evidence showing that the offers in ads (e) to (h) had ended on the stated dates and that consumers could not take advantage of the offers after the advertised closing dates.
We noted that the offer in ad (e) featured text that stated “The genuine sale … choose any of these styles for only £395*** fully fitted …” and showed images of four different doors, which were “made to measure” and came with a "10 year guarantee” and “free” £20 M&S gift voucher. However, we noted that although the offer in ad (e) stated “Winter specials for seven days only must end Monday 22”, it appeared again showing the same doors in ads (f), (g) and (h), which all had different closing dates of: 29 February, 7 March and 11 April, respectively. We considered that this showed that the closing date advertised for the promotion in ad (e) had also been extended on an ongoing basis.
Therefore, because the offers in ads (a) and (e) were still available after their closing dates, we considered customers, who might have hurried to make a decision to take advantage of the offers before the original end dates, might had been disadvantaged. Because of that and the ongoing closing dates for both offers, we concluded that that the promotion was misleading and in breach of the CAP Code.
On this point ads (a) to (h) 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), 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. and 8.17.4.e 8.17.4.e Closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter make it necessary and either not to change the date would be unfair to those who sought to participate within the original terms, or those who sought to participate within the original terms will not be disadvantaged by the change. (Sales promotions).
2. Upheld
We noted that ads (a), (b) (c) and (d) stated that consumers could claim a “free” £20 M&S voucher if they purchased a door before the closing dates of the offers.
We noted that The UPVC Company stated that all their ads featured a qualifying statement to the “free” voucher offer, which read "Voucher Offer or equivalent discount applies - Prices shown include all discounts". However, we noted that only ad (b) included small print and although it featured the disclaimer, we considered that it was not legible.
We considered that the claims "The genuine January sale", "Choose any of these styles for only £365" and "Order before 31st January and get a free £20 M&S gift voucher" in ad (b), would be interpreted by consumers that they could take advantage of both the advertised sale price and the "free" M&S voucher when purchasing a door. However, we considered that this was contradicted by the small print, which stated that consumers could either claim a “free” M&S voucher or an “equivalent discount”. Furthermore, we considered that the latter suggested that an additional discount applied to the sale price if customers did not want a “free” voucher when in fact, according to the advertiser, it referred to the discount that had already been applied to the advertised price. We noted that the small print further stated that the advertised prices included “all discounts”, which we considered contradicted both the main claims and the first part of the small print.
In their response, we noted that The UPVC Company stated that if they were marketing a door at a discounted price of £395, then that would be the total price a customer paid if they preferred the discount in lieu of the voucher. We therefore understood that customers who received the voucher would ultimately pay a higher price than that advertised in the promotion
We therefore concluded that the “FREE £20 M&S VOUCHER” claim in ads (a) to (d) were misleading.
On this point ads (a) to (d) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. and 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Qualification), 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. (Prices) 3.24 3.24 Marketing communications must not describe items as "free" if: and 3.24.2 3.24.2 the cost of response, including the price of a product that the consumer must buy to take advantage of the offer, has been increased, except where the increase results from factors that are unrelated to the cost of the promotion, or (Free claims), 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. and 8.17.4.e 8.17.4.e Closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter make it necessary and either not to change the date would be unfair to those who sought to participate within the original terms, or those who sought to participate within the original terms will not be disadvantaged by the change. (Sales promotions).
3. Upheld
We noted that ads (a) to (d) were promoting a sale on the advertised doors and consumers would understand that a discount applied. We considered that the basis of that discount needed to be made clear in the ad and supported with documentary evidence by The UPVC Company.
We understood from The UPVC Company’s response that the promotional price was compared to the manufacturer’s RRP, which we considered had not been made clear in the ads. They had not provided us with details of what the RRP for the doors were, along with documentary evidence showing that this was the price at which they were generally sold across the market.
Therefore, because the bases of the comparisons with previous prices, made through the references to a “sale” in ads (a) to (d), had not been made clear and had not been supported with adequate evidence, we concluded they were misleading and had not been substantiated.
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.
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),
3.7
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),
3.39
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.
and
3.40
3.40
Price comparisons must not mislead by falsely claiming a price advantage. Comparisons with a recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold.
(Price comparisons).
Action
The ads must not appear again in their current form. We told The UPVC Company that their closing dates for future promotions must not be extended unless circumstances outside their reasonable control made it unavoidable. Furthermore, they must ensure that they do not describe a product as “free” unless that was the case and that the basis of their price comparisons were made sufficiently clear and supported with robust evidence.
CAP Code (Edition 12)
3.1 3.17 3.24 3.24.2 3.3 3.39 3.40 3.7 3.9 8.1 8.17.4.E 8.2
