The ASA recently reported its decision on complaints that two retailers had failed to make proper arrangements to have enough stock available for a promotion (a breach of the CAP Code). One retailer got off, the other didn’t. What was the difference?
The Big Food Group plc T/A Booker Cash & Carry and Amazon.co.uk
The Advertising Standards Authority
ECommerce giant Amazon and Booker Cash & Carry were both in the dock following the unavailability of products that they were heavily promoting.
In the case of Booker, the culprit was a leaflet for cash & carry offers headlined "On promotion". 24 pages of goods and their prices featured. At the bottom of each page appeared the legend "all offers are subject to availability. Not all products advertised are available from all branches. If a product is not available at the time of your visit, please speak to a member of our management team who will make every effort to order it for you. Not all product varieties are on promotion". The complainant alleged that some items on special offer had not been available since the promotion started.
Para 30.1 of the Code says that promoters should be able to demonstrate that they made a reasonable estimate of likely response and that they were capable of meeting that response. 30.2 states that phrases such as "subject to availability" did not relieve promoters of the obligation to take all reasonable steps to take to avoid disappointing participants.
Did "subject to availability" help
In their defence Booker cited the "subject to availability" wording on each page and said that stock levels were based on customer response to past promotions. They supplied information about stock levels for the products across the Booker Cash & Carry chain but did not show how much of the stock was made available for the promotion.
In its verdict the ASA acknowledged that the brochures made clear that not all stock was available from all branches, but it was concerned that Booker had not in its defence sent information about the anticipated response to the promotion or how much stock was made available. It reminded Booker that it should be able to provide evidence that it had made a reasonable estimate of response to the promotion before the promotion started and was satisfied that it was capable of meeting that response.
Accordingly the complaint was upheld.
In the case of Amazon it was a national press insert in the form of a brochure. A camera phone was on offer but when the complainant tried to order the phone the same day as he received the insert he was told it was out of stock.
In this case the complaint was not upheld. Amazon provided evidence that it had ordered the maximum additional stock from its supplier to fulfil outstanding orders. It also provided details of historical sales for the handset before this particular package was promoted, projecting sales of the bundled product, actual sales of the previous non-promotional product and a purchase record of the promoted product. It was also clear that when a second run of the brochure was organised, this particular promotion was removed from it.
In all the circumstances, given the level of data supplied by Amazon and the fact that it appeared to have no reason to believe that it would be unable to fulfil orders at the time the brochure went to print, the ASA was persuaded the complaint should not be upheld.
Why this matters:
At the end of the day there is not a huge difference on the factual substratum of these two cases, but the differentiating factor appears to be that Amazon was in a position to supply historic stock and sales data in respect of the relevant products at the relevant time.
On the other hand it is not clear whether Amazon supplied what Booker failed to supply when on the evidence it had made a reasonable estimate of likely response and satisfied itself that it was capable of meeting that response. Whatever the true circumstances of each case, it is clear that advertisers face a backlash after highly successful promotions if they cannot show that before the launch of the promotion, reasonable steps were taken to establish likely demand and efforts made to determine that the anticipated demand could be met.