“Always 10% cheaper or we’ll give you the difference guaranteed” and “15% off everything” claimed respectively ASDA and B&Q. The Advertising Standards Authority received complaints about both campaigns. Was the “always cheaper” claim a lowest price guarantee and was absolutely everything reduced by 15%? Thomas Spanyol reports.
Who: B&Q, Asda and the Advertising Standards Authority ("ASA")
When: 7 March 2012
Where: United Kingdom
Law stated as at: 3 April 2012
Mixed ASA fortunes for ASDA and B&Q over "10% cheaper or we'll give you the difference guaranteed" and "15% off everything" claims.
Given the economic gloom of the past few years, it is no shock that retailers continue to compete for customers with high-impact universal promotions. Two recent adjudications by the ASA provide some guidance as to how the wording of such grand claims can determine their resistance to challenge.
First, the supermarket chain ASDA. Well known for advertising themselves on price, two recent press adverts were challenged by competitor Tesco over the phrase "Only one supermarket is… always 10% cheaper or we'll give you the difference guaranteed". A banner at the top of the ad also contained a collection of roundels which stated "SALE", "Half Price", "Price Drop", "50% off", "Price drop", "cheap". Competitor supermarket Tesco claimed that this was misleading as it came across as a lowest price claim.
The Committee of Advertising Practice ("CAP") has published a help note on lowest price promises, detailing how the CAP Code should be interpreted in this area.
Lowest price claims must (among other things):
- be able to be substantiated by marketers;
- verifiable on the basis of information given in the ad; and
- relate to every product sold (unless specifically limited in the wording).
Price promises must:
- be careful with the use of 'guarantee' and 'guaranteed' (the first is a price promise, the second an absolute lowest price claim);
- state any significant conditions clearly; and
- beat, rather than match, competitors prices unless the promise provides for a specific level of compensation if lower prices found elsewhere.
In their defence ASDA claimed that the wording clearly referred to their "ASDA Price GUARANTEE" ("APG") which was referred to prominently on each advert and clearly explained in a footnote. ASDA pointed out that with the APG, ASDA would always be 10% cheaper than the named competitors or they would give consumers the difference.
The ASA upheld Tesco's claim on the following grounds.
Part of the headline claim "… always 10% cheaper" appeared in bold text in the middle of the ad. The various roundels in the banner together with the headline claim were likely to be interpreted by consumers as claims that referred to the price of ASDA goods.
Therefore "… always 10% cheaper" was likely to be seen as a claim that ASDA offered the lowest prices and would be interpreted as a 'lowest price' claim. The ASA noted that the footnote explained the APG but considered that this qualification contradicted ASDA's absolute claim that they were always the lowest on price.
In essence, the choice of wording and the layout made ASDA's price guarantee look like a lowest price promise. That made it misleading. While not specifically mentioned, it is unlikely that ASDA's case was helped by the blurring of the terms 'guarantee' and 'guaranteed' in the copy. This point has undone other advertisers in recent ASA adjudications. As per the CAP help note advertisers should avoid the use of the word 'guaranteed' when they mean a specific guarantee.
You can do it…
Do-it-yourself retailer B&Q walked away from their adjudication with a happier outcome. A complaint was raised about an e-mail ad sent to consumers which stated "Spring into summer with our 15% OFF EVERYTHING* voucher". The asterisk was linked to small print at the foot of the e-mail which stated "15% off discount valid from 10th – 13th June 2011 inclusive … Voucher excludes deliveries, installations and gift card purchases".
Home Retail Group, another DIY retailer, challenged whether the claim "15% OFF EVERYTHING" was misleading because exclusions applied.
B&Q raised a robust defence, pointing out that the offer applied to all products, and that the only three things the discount did not apply to were a) not products, and b) clearly pointed out in the advert. The offer applied to all of the c.40,000 lines on sale in B&Q stores.
The ASA agreed with B&Q, noting that the small print did not breach rule 3.9 of the CAP code as it successfully qualified rather than contradicted the offer. The ASA also agreed with B&Q's point that as the excluded items were not products it was likely that recipients would consider that they might not be included. The complaint was therefore not upheld.
Why this matters:
The ASDA adjudication shows it is important not to muddy the waters around lowest price promises and lowest price guarantees and to keep things crystal clear for consumers. When drafting creative copy the risks can be flagged up and managed by reference to the CAP help note. Conversely, the B&Q adjudication shows how advertisers can successfully make big-impact claims provided that every base is covered in terms of exclusions.
The common thread in both of the above adjudications is that neither of the adverts generated any complaint from customers. In-house legal teams should remain alert to the ever-present risk of their adverts being challenged by competitors and should aim for best practice. Regardless of how small the cracks in the claim may seem, that is unlikely to stop competitors reaching for the sledgehammer.