Air purifiers and spotlights were recently the focus of ASA cases where advertisers including B&Q claimed to sell more cheaply than others. But was it the same product and what are the lessons for other advertisers? Frances Vickery reports.
Who: B&Q and John Lewis / Sit up Ltd t/a Price Drop
When: September 2008
Law stated as at: 10 September 2008
The ASA has recently adjudicated on price comparisons under the CAP and BCAP Codes.
B&Q and John Lewis (CAP Code)
In a national press campaign, B&Q offered customers 10% off the price of its products if customers found the product cheaper elsewhere. The advertisement showed an image of a light with text that stated:
‘Jena 3 light, round ceiling spotlight, brushed chrome – John Lewis price £95, B&Q price £41.98, B&Q save you £53.02’.
Under rule 18.1 of the CAP code, comparative claims should neither mislead nor be likely to mislead.
John Lewis challenged the advertisement saying it was misleading because they did not sell the Jena 3 light but a similar product. B&Q argued that there was no intention to mislead – they stated that the Jena light was substantially similar in quality and appearance to John Lewis’s Scala spotlight and that the only significant difference between the products was the price.
Substantial differences between compared products
The ASA upheld John Lewis’s challenge saying that the price promise (the 10% refund if the product was found cheaper elsewhere), together with the price comparison implied the same product had been compared in the advertisement. It found that there were substantial difference between the two products – wires on the B&Q light were visible and the base was made from pressed steel, whereas the John Lewis light had concealed wires and the base was made from spun aluminium.
The ASA found that the advertisement breached rule 7.1 CAP Code (that no marketing communication should mislead or be likely to mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise), rule 18.1 (above) and 18.3 (that the advertisement should objectively compare one or more material, relevant, verifiable or representative features of the product).
Sit up Ltd t/a Price Drop (BCAP Code)
Price Drop TV ("PDTV") is a reverse auction channel where products are advertised at an initial price (which remains on screen as the price drops) and customers purchase the items as the price falls.
A Russell Hobbs air purifier was advertised on the channel with various claims in relation to its ability to banish or reduce odours, pollens, spores and dust mites and also various claims in relation to health benefits. The air purifier was advertised with a start price of £120 and at the end of the auction it sold for £24.99.
Monitoring staff at the ASA challenged whether the air purifier was generally available at the start price and whether advertising the product at that price breached rules 5.1 and 5.3.1 of the BCAP Code in relation to misleading advertising and accurate pricing.
In defending the manner in which they set their start prices, PDTV said that where a product was unique to PDTV (the Russell Hobbs air purifier was exclusively distributed by them), it would compare similar products and adapt the pricing for any variables in the product specification or features. PDTV submitted to the ASA, pages from three websites where, what they said was a comparative product was sold for £129. They maintained that on the basis of the comparison of the air purifier with the one online, the start price of £120 was a fair one.
Products on which price comparison based not the same
The ASA upheld the challenge and said that the start price of £120 implied that the product was generally available for that price. In fact, the ASA had found that the comparator product that PDTV had used was a newer, slimmer model designed for a smaller room. It felt that the comparison with the online model was distorted as the comparator model was considerably more powerful than the one being advertised by PDTV.
The ASA also found that PDTV has not adhered to rule 8.3.1 BCAP Code which requires advertisers to refer to the Department for Business, Enterprise and Regulatory Reform Pricing Practices Guide, which requires advertisers to give the name of the other traders with whom they are comparing prices and to ensures that the other trader’s price relates to the same product or substantially similar product and to state any differences clearly.
Why this matters:
If comparing product process, advertisers should be careful to do so with products which are substantially similar and they should be able to demonstrate that the comparison is justified. An advertiser cannot make out that they have compared like-with-like when the comparator product is of a significantly higher standard/quality.
Advertisers should also bear in mind that they may need to look beyond the CAP/BCAP codes to other guidance such as that discussed above from the Department for Business, Enterprise and Regulatory Reform.