Omar Bucchioni reports on some recent key Advertising Standards Authority decisions dealing with apparently never ending sales and claims such as “leading British manufacturer” and “100 day money back guarantee”.
Topic: Regulatory
Who: ASA, Tootal, Scarborough Racing Developments, Asda
When: July 2010
Where: UK
Law stated as at: 31 July 2010
What happened:
1. “leading British manufacturer”
Recently, the Advertising Standards Authority (ASA) investigated a national press offer for men’s pyjamas which was headlined “Classic Tootal men’s pyjamas”. Text stated “Manufactured by a leading British manufacturer, Tootal”.
A complainant challenged whether the claim “a leading British manufacturer” was misleading, because he believed that Tootal was a brand name, not a manufacturer, and did not make clothes in the UK.
What Tootal had to say
The Telegraph Media Group Ltd (Telegraph), in association with Tootal, said Tootal was a British company that manufactured pyjamas in its own factory in South Korea. They provided written confirmation from Tootal. They did not believe the claim “leading British manufacturer” suggested that Tootal manufactured in the UK but merely stated the fact that it is British.
What did the ASA make of it
The ASA acknowledged that Tootal was a registered British company; however, because the ad specifically referred to a “British manufacturer”, readers would understand that the manufacture took place in the UK. Since the pyjamas were manufactured in South Korea, The ASA concluded that the ad was likely to mislead and breached rules 7.1 and 7.2 (Truthfulness) of the CAP Code.
The case is reported on the ASA website.
2. “never-ending sale”
In another recent case, the ASA investigated a regional press ad for Scarborough Racing Developments stated “CLEARANCE SALE (RETIREMENT) Everything must go!”
A complainant challenged whether the claim “CLEARANCE SALE (RETIREMENT)” was misleading and could be substantiated. He believed the claim had appeared for more than a year and that the advertiser had continued to buy stock.
What Scarborough Racing Developments had to say
The owner of Scarborough Racing Developments said he was holding a “pre-retirement sale,” which he said was his first sale after 46 years in business. He said he had intended to retire before but had been unable to because of the economic climate.
He said the maisonette above the shop was already for sale (he supplied a copy of the estate agent’s online ad) and said that he intended to put the empty shop up for sale as soon as he had cleared it out. He said it had been necessary to re-stock on everyday consumables because not to do so would reduce the number of customers coming to the shop and would delay clearing the slow-moving items. He said he had been contacted by his local trading standards office regarding a previous ad and believed the investigated ad was in line with their advice he received.
What did the ASA make of it
The Scarborough Racing Development’s home trading standards authority informed the ASA that they had previously advised the advertiser that it was acceptable for them to refer to a closing down sale due to retirement (not beyond 6 to 12 months).
The ASA took into consideration the argument that the sale process may have taken longer than expected because of the economic climate; however, the CAP Code states that marketers should not falsely claim that they were about to cease trading.
Since the sale had continued to take place for longer than 6 to 12 months, and Scarborough Racing Developments had continued to re-stock on some items, the ASA concluded that the claim “CLEARANCE SALE (RETIREMENT)” was misleading and breached the CAP Code clauses on truthfulness and availability of products.
The case is reported on the ASA website.
3. “100 day money-back guarantee”
In recent weeks, the ASA also dealt with a TV ad for the clothing range George at ASDA, which showed scenes of coloured thread, fabric and sewing in progress.
The voice-over stated “At George, we know what makes a difference; the quality and feel of the fabric, the stylish cut, the stitching, colours that stay colourful, extensive testing and the finer details. And that’s why, at George, we now offer a one hundred day quality guarantee on all our clothes, so you can enjoy quality that lasts. Yes, that’s George, exclusively at ASDA”.
On-screen text stated “Excludes footwear, jewellery and accessories not made from cloth”.
Further on-screen text stated “From 8th March. Retain proof of purchase”.
The final shot showed a circle logo with the words “100 DAY QUALITY GUARANTEE. George” written inside it.
A complainant challenged whether the claim “… at George we now offer a one hundred day quality guarantee on all our products” was misleading, because they believed that under the Sale of Goods Act consumers had more time to return items that were not of an acceptable quality.
What the ASDA Stores Ltd (ASDA) had to say
ASDA told the ASA that the George 100-day guarantee enhanced the rights of the consumer beyond the Sale of Goods Act. The initiative was designed to give customers confidence that a low price product had the back-up of a quality guarantee.
Prior to launch, ASDA briefed the staff with regard to the Guarantee. The brief included two lists; a “faulty” list, which detailed defects covered by the Sale of Goods Act and a “quality” list which detailed defects captured by the George 100-day guarantee.
“faulty” defects included: split seams; dropped stitches; holes; ripped or frayed material; needle damage; split lining; broken zip or elastic; broken or missing buttons, poppers, badge, print, bead or sequins.
“quality” defects included: fabric bobbling; pulled threads/snagging; shrinking; stretching and colour fading.
ASDA said that the 100-day guarantee did not in any way affect customers’ statutory rights and if anything enhanced them because a customer could return George clothes within the hundred days simply because they had changed their mind, rather than because there was anything physically unsatisfactory about the clothes. For example, they could return a George item of clothing because they had found a similar garment from another retailer afterwards, or because the garment did not fit or because they didn’t like the colour or it didn’t match the item they had bought it to go with.
The guarantee offered a tangible point of difference, ASDA said, from other retailers and enhanced consumers statutory rights by offering a 100-day “cooling off” period.
However, ASDA said they accepted the ad should have made it clearer that their guarantee enhanced consumer rights beyond statutory rights because it offered a 100-day “cooling off period”. They regretted any confusion and said they would ensure that the extent of the guarantee would be made clearer in future advertising.
Clearcast confirmed that they had understood any guarantee offered by ASDA George was additional to viewers’ statutory rights.
What did the ASA make of it
Under the Sale of Goods Act (as amended by the Sale and Supply of Goods Act) requires sold goods to be of satisfactory quality and, a consumer has six years to bring an action for breach of contract. In addition, for the first six months, if a consumer makes a complaint about quality not being satisfactory, the onus is on the seller.
The ad did not highlight the argument presented by ASDA (i.e. that the guarantee enhanced consumers statutory rights by offering a 100-day “cooling off” period, allowing them to return goods which did not have quality defects but where they had changed their mind about the item), but focused on the material quality of the garments, for example “colours that stay colourful”.
The ASA considered that the George 100-day guarantee, as presented in the ad, did not offer any more consumer protection, in relation to the obligation for a seller to provide goods of a satisfactory quality, than that already available under statutory legislation.
Therefore, the ASA found the ad to be in breach of the CAP (Broadcast) TV Advertising Standards Code rules 5.2.10 (a) (Exaggeration) 5.1.1, 5.1.2 and 5.1.3 (Misleading advertising) by presenting rights given to consumers in law as distinctive features of the advertiser’s offer. We also concluded it was likely to mislead by giving the impression consumers only had 100-days in which to return faulty products, when that was not the case.
The case is reported on the ASA website.
Why this matters:
The above are three cases which breached the Codes. Advertisers and marketers need to pay particular attention to claims of the kind that were probed in these investigations, namely as to geographic origin, closing down or “retirement” sales and customers’ statutory rights as purchasers.
