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Advertiser: Marks and Spencer
Medium: Internet (Company Website)
ASAI Code 7th Edition: 2.4(c), 4.1, 4.4, 4.9, 4.10
The search result page for a range of sofas on the advertisers’ website featured a list of products. Below the main image for each product was the text:
“Delivery in 7 days”.
On the specific product page, the description underneath the product image stated: “Delivered in 1 week”.
The complainant said that she had ordered a sofa and was subsequently told that the earliest delivery date possible would be sixteen days after her order, instead of seven as advertised. Upon querying this, the complainant was advised that it would take seven days for the item to be dispatched from the warehouse and another seven days for delivery because she was based in Ireland. She said she was also advised that the delivery claim of seven days was an estimate only.
The complainant therefore considered the advertising to be misleading as the delivery claim could not be upheld in her case.
The advertisers said that in the interest of adopting a pragmatic and transparent approach, and given that they were not currently making the relevant marketing claims, they did not wish to dispute the factual accuracy of the complaint. Rather, they said, they wished to add relevant details which they believed showed that, whilst the seven-day delivery claim may have appeared misleading when taken in isolation, in mitigation (i) the seven-day delivery commitment was showing in error, with that error subsequently rectified, and (ii) the full purchasing process and customer journey made it clear that delivery claims were estimates and subject to change. Nevertheless, they said, they had reconfirmed that delivery times were not made on general product pages, and advised that they had implemented measures to ensure that further consumers, and particularly those in Ireland, would not feel mislead by the marketing communications on the website.
The advertisers said that, while it was clear from the evidence provided as part of the complaint that the claim was made on the relevant product listing page (“PLP”) it had been M&S policy since 2019 to remove all delivery claims from the PLP. As such, they advised, the inclusion of same appears to have been in error. They said that they had reconfirmed that all current PLPs did not make delivery claims and advised that this would be the case going forward.
They explained that, after viewing a summary of products on the PLP, the customer must view a product-specific product description page (“PDP”) before making an order. On the PDP, they said, it prominently stated underneath the option to add an item to your bag that “By adding this item to my bag, I agree that I have read the furniture terms and conditions”. They said that paragraph 6 of the furniture terms and conditions (the “Ts&Cs”) stated that the delivery date provided was an “estimated delivery date” and that for online orders the PDP would display the “estimated dispatch time”. They said that paragraph 8 of the Ts&Cs stated that “the delivery of your furniture may be delayed or postponed” and informed customers of their rights to cancel in these circumstances. As such, they said, they believed that the purchasing process as a whole was not misleading as the average consumer would have read the Ts&Cs and concluded that the claim was an estimate which was subject to variation.
Nevertheless, they said, they understood that the claim when viewed in isolation could have been misleading. They advised that they had examined the processes by which marketing claims on the website were made and the logistics process involved in delivering furniture ordered on the website. They said that this investigation showed that their product and order management systems which contained the relevant advertising was shared by both the Irish website and the UK website. As a result, they said, claims relating to delivery times made in respect of the UK on the UK website were automatically replicated on the Irish website. However, they said, their furniture carrier confirmed that delivery to Ireland can take an extra 3-5 days and, as a result, delivery claims which might be appropriate for the UK website were not always appropriate on the Irish website.
Following receipt of the complaint, they said, they had therefore updated the messaging on the PDP to clarify that deliveries to Ireland would take an additional week in order to recalibrate expectations to reflect their logistics process. They advised that they had also spoken to their operations and technical teams to ensure that the common product and order management system over multiple territories would be taken into consideration when making marketing or advertising claims.
The Complaints Committee considered the detail of the complaint and the advertisers’ response.
They noted that the issue was the result of an error and acknowledged the changes made by the advertisers to provide a more accurate representation of the expected delivery time. They considered, however, that the longer delivery time to Ireland should have been reflected on the relevant website and believed the advertising to have been misleading at the time.
In the circumstances, the Committee considered the advertisement to be in breach of Code sections 4.1, 4.4, 4.9 and 4.10.
Action required: As the advertisements had already been amended no further action was required.