Who: J Sainsbury plc (“Sainsbury’s“); Advertising Standards Authority (the “ASA“)
Where: United Kingdom
When: 31 August 2016
Law stated as at: 13 October 2016
Sainsbury’s ran a promotion in the London Evening Standard newspaper in October 2015, offering consumers a voucher for £2 off a Charlie Bigham’s ready meal.
The main text on the voucher read: “£2 OFF Charlie Bigham’s EXCLUSIVE SAINSBURY’S OFFER CHOOSE FROM 18 DELICIOUS MEALS FOR TWO”.
Small print below stated: “TO THE CUSTOMER: This coupon entitles you to £2.00 off the purchase of one Charlie Bigham’s meal in participating Sainsbury’s stores only, subject to availability”.
A complainant challenged whether the ad was misleading, because she had been informed that only one Sainsbury’s store in the entire Greater London area stocked the products.
In its response, Sainsbury’s explained that out of 350 stores within the Greater London area, 290 stores had participated in the promotion. The selection of stores that participated had not followed a particular formula (for example, large supermarkets only), so it had not been possible to narrow down the description of participating outlets.
Further, those stores that opted in and out of the promotion did so because of a variety of factors, such as consumer demand, sales pattern and the discretion available as to whether or not to participate (in light of other store activity). This meant that it was overly burdensome for Sainsbury’s to provide details to consumers of which stores were participating.
Sainsbury’s also argued that it was standard industry practice to use general language when communicating limitations applicable to promotions and – in light of those factors – they considered the use of “selected stores” was appropriate.
The ASA acknowledged that consumers would be likely to understand that the words “in participating Sainsbury’s stores only” meant that there was a restriction in terms of the number of stores at which the Charlie Bigham’s meals would be available. However, those words were not sufficient to inform consumers of the extent or nature of the limitation.
The ASA noted that geographic restrictions applied to the promotion; it was only available in stores within the M25 area, and even then only 74% of those stores stocked at least one variety of the meals. That meant that some areas of Greater London, including the area in which the complainant lived, had no participating stores.
As a result, the ASA concluded that the restrictions on the offer were significant and, because they were not communicated fully and clearly, the ad was likely to mislead consumers. Therefore, the ad was found to be in breach of rules 8.1 and 8.2 (Sales promotions), and 8.17, 8.17.1 and 8.17.7 (Significant conditions for promotions) of the CAP Code.
Sainsbury’s was warned that the ad must not appear again in its current form, and was also told to ensure that any significant restrictions on offers are unambiguously communicated to consumers in future promotions.
Why this matters:
It is not entirely clear from the ASA’s ruling what steps Sainsbury’s should have taken to ensure the restrictions on the promotion were clearly communicated.
Presumably the ASA is not suggesting that every single outlet participating in a promotion should be listed in full. In most cases, a suggested clarification for promotions such as the one ran by Sainsbury’s would be to specify categories of stores that were not participating – for example, “excluding Sainsbury’s Local stores” – but (according to Sainsbury’s response) that was not possible in this instance.
Sainsbury’s could arguably have set out the geographical restrictions more explicitly (by highlighting that only selected stores within the M25 were participating in the promotion). Potentially, it might also have helped to include a disclosure such as “See [URL] for details of participating stores. Not available in some areas.”.
The ASA’s decision underlines the importance of ensuring that any significant conditions applicable to a promotion – including geographical, personal or technological restrictions – are communicated clearly to avoid misleading consumers.