News Item
ASA finds “Fill Your Boots At Tesco” comparative ad not misleading
1 October 2009
A recent decision by the UK advertising industry watchdog, the Advertising Standards Authority (ASA), found that an advertisement by supermarket chain Tesco comparing prices with health and beauty retailer Boots was not misleading, despite the fact that one of the prices compared was lower in Boots stores than in Tesco.
The ad compared the price of a number of products available in Tesco and on the Boots website, claiming that such products in Tesco were “£5.99 cheaper than Boots”. It included small print stating “Prices checked online at Boots.com on 25/3/09…”.
One of the products compared in the ad, Gillette razorblades, was priced at £11.24 on the Boots website, whereas the Tesco price was £9.76. However, the product was priced lower than this in Boots stores, at £9.60. Boots therefore challenged the ad, claiming that it was misleading since it was not clear the prices used in the comparison did not apply in-store.
The rules relating to comparative advertising provide that a comparative ad must be honest and truthful, must not be misleading, and that the advertiser must hold documentary evidence to prove all claims made. In this case, Tesco established that they had conducted research in 2008 which showed that of 344 items sold both in Boots stores and on the Boots website, none was sold at a higher price in-store than on the website. Tesco therefore decided that online prices were a reasonable and accurate way to check Boots’ prices for comparison, since they believed that Boots intended their in-store prices to match their online prices with the exception of online promotions.
The ASA found that Tesco’s comparison of prices was fair and was unlikely to mislead the public. They took the view that the public would interpret the express wording on the ad, which stated that the Boots prices had been checked online at the Boots website, to mean that the prices used in the comparison might not be the same as the Boots in-store prices. The ASA considered that it was reasonable for Tesco to base its comparison on online prices, and found that it was not necessary for Tesco to include within the ad an express disclaimer stating that Boots in-store prices might differ from the online prices compared. The Boots complaint was therefore dismissed.
The ASA’s finding could be regarded as a sign that the ASA are beginning to apply a more relaxed interpretation of the comparative advertising rules, and to forgive advertisers for small errors provided that the overall impression conveyed by the ad is acceptable. On the other hand, the ASA’s decision in this case may be attributed more to the fact that Boots had been unable to provide any indication as to how often their in-store and online prices differed, and in particular, how frequently the online prices exceeded the in-store prices.
For more information, contact your usual Marks & Clerk attorney or Mike Shaw at mshaw@marks-clerk.com.