Advertisment
Product listings available from a German Discounter through the Buymie app included the following:
“Rooster Potato 2 – pack €2.35 No Description.”
“Asparagus Tips 125g €1.52 No Description.”
“Irish Broccoli 300g €1.29 No Description.”
“Rooster Potato 7.5Kg €7.07 No Description”
“Loose Fennel €1.17 No Description.”
“Irish Butter – Sun Dried Tomato 120g €2.35 €2.35”
“Irish Butter – Pesto 120g €2.35 €2.35”
“Pâté – Chicken Liver Topped with Thyme & Basil 200g €4.12 €4.12”
“Loose Swede €1.05 €1.05 No Description.”
“Loose Iceberg Lettuce €1.05 €1.05 No Description.”
The Buymie App offered a range of stores depending on the consumer’s choice of location. By way of example, in Dublin 4, three stores were offered, one being described as “German Discounter”. At the bottom of the Choice page, text stated “Buymie is an independent business that is not necessarily affiliated with, endorsed or sponsored by the retailers mentioned above”.
Complaint
Aldi Stores (Ireland) Ltd objected to the advertising on the grounds that it was inaccurate and misleading as the products featured had either never been sold in Aldi or were no longer on sale in Aldi. They also objected on the grounds that the prices featured were incorrect.
In regards to each product listed in the Buymie App, Aldi stated the following:
Rooster 2 pack: the image shown was of loose rooster potatoes with the wording “2 pack” across it, however, they have not sold rooster potatoes in a 2 pack since May 2013.
Asparagus tips: The App incorrectly showed asparagus tips as being on sale in Aldi stores when Aldi have never sold asparagus tips in their Irish stores as they only sell bundles of whole asparagus. They said that the price of €1.52 was incorrect as the price of the bundles of whole asparagus in Aldi was €1.29. They considered that Buymie were charging more for the products than the Aldi price.
Broccoli: Aldi said that the App indicated that the Broccoli on sale was 300g, however, they said that they only stock Broccoli in weights of 500g. Aldi also said that the price indicated at €1.29 was incorrect as the Broccoli on sale in Aldi was 99c, again an overcharge by Buymie. Again, they considered that Buymie were charging more for the products than the Aldi price.
Potatoes 7.5kg: Aldi said that they currently sell 7.5kg rooster potatoes with 33% extra free (10kg) therefore the product listed for sale on the App was not available in Aldi stores. Aldi said that the price advertised was €7.07, however, Aldi sell their 7.5kg bag of potatoes with 33% extra free for €5.99. Therefore, they considered that Buymie were charging more for the products than the Aldi price.
Loose Fennel: Aldi stated that fennel was incorrectly shown as being on sale in their stores when they do not currently sell fennel.
Irish Butter Sun Dried Tomato: They said that this product was incorrectly shown as being on sale in Aldi stores when they have not sold it since July 2016.
Irish Butter Pesto: Again, Aldi stated that this product was incorrectly shown as being on sale in Aldi stores when they ceased selling it in July 2016.
Chicken Liver Pâté: Aldi stated that this product was incorrectly shown as being on sale in Aldi stores when they have ceased selling it in May 2016.
Swede: Aldi stated that the price indicated at €1.05 was incorrect as they sell swede for 85c.
Iceberg Lettuce: They said that the price indicated in the advertisement at €1.05 was incorrect as Aldi sell iceberg lettuce for 89c.
In regards to their complaint, Aldi stated that the above listed products made up a small range of the products available to purchase on the Buymie App and their review had exposed a significant number of inaccuracies from which they considered it was reasonable to assume that both the Buymie App and the Buymie website contained many more inaccuracies in relation to Aldi products. In the light of this Aldi considered that customers using the Buymie App and website were being misled.
Response
Buymie Technologies said that they operated a mobile app for on-demand groceries whereby users of the app can contact personal pickers who purchase goods that have been selected by the user. They said that they had partnered with a number of retailers who work with them to ensure the accuracy of the descriptions and/or prices of the products that are sold by those retailers and displayed on the Buymie App. They said that they also offer users the option of selecting groceries from retailers who are not partnered with them, including Aldi and in these circumstances, it was not always possible for them to update the descriptions or prices of products which are sold by these retailers in real time. They said that this matter was outlined in their terms and conditions, its disclaimer and their help centre FAQ’s. In the light of this they considered that users of their App would understand that they are engaging the services of an independent online platform and that the price of the products displayed in their App may be more than the price in store and that a commission is charged on goods in return for the use of the service.
They said that the purpose of the advertisements on their App was to display products which may be selected by users for the picker to purchase in store and deliver to the user. They said that many of the descriptions in their App were generic and that this was necessarily so in circumstances where non-partnered retailers do not provide up to date information on their products and prices to them. They referred again to the fact that this information was available in their terms and conditions, their disclaimer and their help centre.
They said that users of the service are informed that some items may not be available, that prices and weights are estimates only and that prices may be higher for products displayed on the App than in store, therefore, they did not see how consumers could be misled as users of the App would have taken steps to download the App and to register their details in order to use the service. During the signup process, users are referred to the terms and conditions and the privacy policy. They said that the advertisements referred to appear at the product selection stage of the app which was then followed by a checkout stage at which point the total price of the products are displayed above a prominent notice which states: “please note this is an estimate. As prices may vary in stores, the final price will be confirmed upon purchase. Prices may be higher than in store.” They said that their checkout stage contained a link to the terms and conditions and the user must confirm that they have read and understood the terms and conditions before completing the transaction and making payment. They considered that users viewed the advertisements in the context of their use of the app and having had their attention drawn to the information in the terms and conditions, they did not consider that they could be misled as to the availability, quantity/weight or price of the products as asserted by Aldi.
Buymie have also stated that as they were operating an online platform they were not a retailer of grocery products and were therefore, not in direct competition with Aldi. They said that they had not sought to take advantage of or damage Aldi’s reputation, nor had they sought to mislead users of the service into believing that they were in any way connected with Aldi. They referred again to their business model which was such that they were unable to provide up to date product information at all times in relation to non-partnered retailers. They said that they were fully transparent in their disclaimer and terms and conditions in relation to the limitations of their service in this regard. They said that users who proceeded to use the service, did so in the knowledge of these limitations. They considered that they have taken sufficient steps to inform users of their app of the conditions relating to orders, products and price contained in the terms and conditions. They also referred to the fact that they have notified users in their help centre that they applied a 14.75% commission to products from non-partnered retailers. They did not consider that it was feasible for them to include details of their margins beside every product as it would place them at a competitive disadvantage.
In response to the complaint regarding the price indication of Aldi’s products, they said that they were clear in their terms and conditions that any listed prices were indicative and that the total cart value was an estimate amount only. They did say that they do take care to ensure that their prices are as up to date as possible and in the case of products sold in partner stores, they work with their partners to achieve this. In the case of non-partnered stores, they have found it more appropriate to use a model whereby the estimated price is displayed on the app and if the item is on special offer in store when it is purchased by the picker, the user’s bill will be adjusted downwards accordingly.
They also said that they are clear at all times that items are subject to availability and in their help centre they explain that as it is an independent service, they do not always know exactly what items are out of stock. They said, without partnering the retailer, it was not possible for them to demonstrate that there is a reasonable supply of such products as it is not the party selling the products.
Finally, they said that they did not exploit or make unfair use of the goodwill attached to the name, trademark, tradename or other mark, brand, slogan or marketing communication of Aldi. They said that they have made no reference to Aldi and their disclaimer clearly states that it is not a partner, agent, affiliate or otherwise associated with the stores that items are purchased in and that “all statements and descriptions of products on the Buymie website are made by and are the responsibility of Buymie and not branded or German discount stores.” They said that they inform users in the disclaimer that the prices displayed on the app may be higher than the prices available in store. Therefore, they did not consider that a user could be misled as to the price Aldi charges for their goods, nor were they misled into believing that there was any commercial relationship between them and Aldi.
Further Information:
The advertiser provided further comments in which they outlined changes they had made to their app, in particular that the terms and conditions had been amended to include reference to the commission rate for products sourced at a German Discounter. They also advised that they would conduct a monthly audit on their non-partner German discount stores pricing to ensure that their lists of available items are more regularly updated on their app.
In addition, they proposed making the following changes to the App:
a) A ‘Partner Badge’ would be displayed beside each Partner store
b) A Notice on each product displayed for non-partner stores would state ‘Prices displayed are inclusive of all fees and taxes’.
Conclusion
Complaint Upheld
The Complaints Committee considered the detail of the complaint and the advertisers’ response.
The Committee noted that the advertiser had indicated in their terms and conditions, in their disclaimer and in their frequently asked questions section of their help centre that items featured in non-partnered stores may not be available, that their prices and weights were estimates only and that prices may be higher on the app then in store. The Committee accepted that users of the app were obliged to agree to the terms of service from the advertiser before using the service.
They noted that the 14.75% commission charged on products purchased from non-partner retailers was indicated in the Help Centre under “How are items priced on Buymie” where it stated “When possible, Buymie partners directly with retailers to bring you the same prices as in store. In some cases the final price paid may be higher than in store. Buymie currently applies a small platform commission (14.75%) to all items ordered from non-partner stores”. While the commission had not been indicated to consumers when using the App nor was it in the Terms and Conditions, the Committee duly noted the advertisers’ action in remedying this by including a reference to the commission in their terms and conditions.
The Committee noted that, at the time the complaint was made, there was no indication to consumers whether the individual German discounter’s product prices were including or excluding the commission chargeable, neither was it clear how consumers could identify which retailers were partner retailers and which were not. They considered that at the time the complaint was made, the presentation was likely to mislead and in breach of the Code. However they duly noted the proposed changes that would be made to address these issues. The Committee noted that as the complainants were not a retail partner, Buymie did not have current, correct pricing for the products they offered for non-partner retailers. In addition, because they were a non-partner retailer, a commission of 14.75% was added to the Buymie’s base price for each product. While the terms and conditions indicated that “Item prices may be higher than in-store.”, the Committee considered that consumers would not expect each and every price to be higher than those available in-store. The Committee duly noted the changes that would be made to indicate that all non-partner store prices included fees and taxes.
The Committee noted that should a product not be available in-store, their pickers always contacted the user in advance to enquire if they were to purchase an alternative on their behalf. However, they noted that the out of stock items concerned were unavailable for a significant length of time and this would exaggerate the availability of those products which were unavailable in the first instance. The Committee considered consumers should be advised, on choosing a German Discounter, when the products price and availability had been checked so that they would be aware that there may be a change in either price or availability.
They considered that the presentation of pricing and product availability, at the time the complaint was made, could mislead the user of the service as to the costs involved and products available for purchase and in light of this the Committee considered that it was in breach of Sections 3.4, 4.1, 4.4, 4.5, 4.9 and 4.22 of the Code.
ACTION REQUIRED:
The Committee noted the proposed changes to the App and requested a further amendment that when users of the App choose a German Discounter store there is a clear indication of the date on which the products featured were last checked in terms of Price and Availability.
