The Advertising Standards Authority took a perhaps unexpectedly lenient view of an already dropped “very best prices” pledge in a Waitrose leaflet. Does this signal a major shift in the ASA’s attitude?
Who: The Advertising Standards Authority and the John Lewis Partnership trading as Waitrose
When: May 2002
John Lewis has brought before the Advertising Standards Authority on a charge that a Waitrose leaflet headed "Our Price Commitment to You" was in fact misleading and contrary to the British Code of Advertising. The leaflet contained a "promise to continue bringing you the best products at the very best prices, just as we've always done". The complainant believed this price commitment applied to only 300 specifically marked items and charged that since the price promise implied that all Waitrose goods were offered at prices that were lower than most of their competitors, this was untrue and contrary to the British Code of Advertising.
In defence, John Lewis/Waitrose asserted that each week they compared hundreds of their prices with those of their competitors, monitored their competitors' prices using their "independent intelligence" department and each week checked a "shopping basket" from three or four of their major competitors. However, they could not show that they were cheaper than their competitors across the board and indicated that since the promise "lacked precision" it would not be used in future advertising in any event.
The ASA noted that for some products, the Waitrose price was the same as or less than those of its competitors, but again did not find the Waitrose prices were cheaper than those of their competitors across the board. Nevertheless, the ASA found for Waitrose and against the complainant. They considered that in context the claim "the best products at the very best prices" would not be understood to mean that literally across the board all Waitrose prices were cheaper than those of their competitors. The more likely take-out was that Waitrose offered quality goods at a reasonable price. Since this meaning was substantiated by Waitrose, the leaflet was acceptable.
Why this matters:
Although one can understand the logic of the ASA's approach here, its verdict is not consistent with previous "complaint upheld" findings in respect of price claims, which if anything have been less specific but still interpreted literally and found not to be substantial. One example is the October 2001 finding against Direct Line’s jamjar.com for a “huge savings on manufacturers’ list prices” claim when they could not show they were a lot cheaper than absolutely all current list prices for all new cars available for sale.
In previous marketinglaw.co.uk case reports we have observed that unlike the Advertising Standards Authority, the courts have been taking an increasingly relaxed, non-literal view of advertising claims, believing that the public is sufficiently streetwise to know that much advertising contains an element of hyperbole. Perhaps at last the ASA is taking a leaf out of the judges' books.