Who: Tesco Stores Ltd (“Tesco”), Sainsbury’s Supermarkets Ltd (“Sainsbury’s”) and the Advertising Standards Authority (the “ASA”)
When: 2 March 2016
Law stated as at: 10 March 2016
In October 2015, Tesco ran a national press ad headlined “Never pay more for your branded shop“, with text below stating, “If it’s cheaper at Asda, Morrisons or Sainsbury’s, we’ll take the money off your bill at the till“. The ad also included a character associated with a flour brand holding a balloon-shaped icon with the text “Brand Guarantee“.
The small print stated that included “Min. basket of 10 different products, including 1 comparable branded product. Total price of branded grocery shop compared with Asda, Morrisons and Sainsbury’s and if cheaper elsewhere the difference will be taken off your bill…“.
Sainsbury’s challenged whether:
- the small print of the ad containing the minimum purchase restriction was sufficiently clear; and
- the claim “Never pay more for your branded shop” was misleading.
Tesco responded that the ad was clearly presented and consistent with the supermarket industry’s wider approach to price match advertising. In addition, Tesco believed that consumers were familiar with how price match schemes worked, that a minimum spend is generally required and that a “branded shop” would be made up of multiple products. Tesco stated that the text and icon together in the ad reflected a price match scheme against branded products at the other ‘Big Four’ supermarkets and customers would receive money off at the till if the branded shop cost more at Tesco.
Tesco stated that the small print was clear and applied to the whole of the ad. Tesco agreed that the minimum purchase requirement should be brought to consumers’ attention, but felt that the requirement did not contradict the headline claim and therefore the small print conveyed this sufficiently. In addition, Tesco added that price match schemes were usually aimed at multiple purchase shops and that their minimum requirement was below the averaged branded shop according to their data.
The CAP Copy Advice team had advised Tesco that the ad was likely to be acceptable in relation to the minimum purchase requirement.
The ASA believed that consumers were familiar with price match schemes but not the conditions involved. In the CMA’s report on Pricing Practices in the Groceries Market (from July 2015), respondents understood that price matching schemes existed at their chosen supermarket, but 25% had no idea how it worked and a further 40% had only a rough idea. Therefore, the ASA agreed with the CMA that retailers should communicate clearly with consumers about these schemes.
The ASA acknowledged the advice from the Copy Advice team, whose view was that it was likely to be acceptable to set the minimum purchase requirement out in small print. The ASA held that while the main body of the ad made it clear that it related to branded items only, it was not clear that it was necessary to buy multiple products to qualify. In addition, the ASA considered “Never pay more for your branded shop” to be “an absolute claim that was likely to be understood by consumers to mean that if they purchased branded good(s), they would qualify for the price match against the named retailers”, therefore, the small print “contradicted the headline claim and was not sufficiently prominent to counteract the misleading impression created by it”. As such, the ASA held that the ad was misleading.
Why this matters:
This ruling reminds and warns advertisers to carefully consider every aspect of the small print in light of the headline claim. It is important that no single point in the small print may contradict the headline claim as this may result in a misleading ad. Significant conditions imposed on offers should also be given suitable prominence. This ruling is also a reminder that, while the CAP Copy Advice team can provide advice, that advice provided does not bind the ASA.