Who: The Advertising Standards Authority (ASA) and Swytch Technology Ltd (Swytch)
Where: United Kingdom
When: 22 February 2023
Law stated as at: 13 March 2023
What happened:
A page on Swytch’s website included several advertising claims in relation to an offer to purchase a kit that converted bikes into electric bikes. On 11 September 2022, the complainant checked the website and saw an offer which stated that the kit price was £524, with the crossed-out text “£1,299 RRP”. The website also included the following claims: “EARLY ACCESS 60% OFF – ENDS IN 1 DAY”, “13,709 SOLD ALREADY” and “291 LEFT” and used countdown clocks. The complainant said they had checked the website earlier that day, which stated that there were only four items left at the point that the complaint had placed an order for a kit. On 27 October 2022, the website included the following claims: “LAST CHANCE – 60% OFF 13:15:46”, “28,694 SOLD ALREADY” and “1,306 LEFT” and, on 28 October 2022, the webpage stated “LAST CHANCE – 60% OFF 5 DAYS”, “28,703 SOLD ALREADY” and “1,297 LEFT”.
The complainant challenged whether the claims were misleading on basis that the number of items remaining had increased and the use of countdown clocks and item countdowns in the ads misleadingly implied that the promotion was limited by time and stock, when the same promotion was still available shortly after the countdowns had expired. The ASA further challenged whether the “60% OFF” against recommended retail price (RRP) claim was misleading and could be substantiated.
Swytch responded to say that they ran a pre-order model and had a limit on the number of units that they could offer at the reduced price. They said that the stock counter showed a true representation of how many units were left within a production batch at any given time, but did not comment on their use of countdown clocks. Swytch also said that the 60% off discount only ran from 15 September to 14 October 2022. They argued that their advertised RRP was genuinely competitive with other similar products on the market and that they sold other kits at full price separately via their shops on third party online marketplaces.
The ASA upheld the complaints because they said that consumers would interpret all of these claims to mean that the 60% discount was a stock or time-limited offer, after which consumers would expect the price of the kits to return to their original price. Swytch did not provide the ASA with any substantiation to evidence whether the numbers on the website were a genuine reflection of stock levels or that the 60% discount was only available from 15 September to 14 October 2022. The ASA also remarked that the ads complained of were seen outside of that period. The ASA concluded that the ads breached the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) because they were likely to pressurise consumers into making a swift transactional decision due to the misleading information in the ads.
Why this matters:
Advertisers must take care not to use price comparison claims against RRP unless these claims can be properly substantiated against the usual selling price of the product. They should also ensure that they do not mislead consumers by implying that promotions are limited by factors, such as time or stock, if this is not the case in practice.
