Advertisment
Radio
“At Tesco, we believe that the best value isn’t just enjoyed by family. It’s inspired by family. That’s why we’re proud to introduce our selection of the 800 products that matter most to Irish families. From fresh Irish mince and blueberries to shampoo and baby wipes, 800 of your favourite products that you won’t pay more for when you shop at Tesco. Everyday all year round. Find the 800 in store and online today. Tesco, every little helps”
Newspaper 1
An advertisement featured photographs of:
(a) a filled sub roll with a round coloured circle inscribed with the text: “Sub Roll €5.90”.
(b) 13 grocery products with a round price tag beside with the words “All this for €5.88”.
Text below the images read:
“At Tesco we are committed to providing the best value to Irish Families.
The 800 are the products we know matter most to you. From your favourite Irish brands to the award-winning range of Tesco own-brand products sourced to the highest standards. Available in-store and online today.
You won’t pay more.”
To the right of the text, the ad featured a large red circle inscribed with the text in the centre which read:
“The 800”
Text around the inside edge of the circle read:
“At Tesco you won’t pay more for the products that matter most to you”
Newspaper 2
An advertisement featured a photograph of a filled shopping basket of well known branded products with the following headline:
“A helping hand for you and your family.”
Below the headline text featured a large red circle inscribed with the text in the centre
“The 800”
Additional text within around the circle read:
“You won’t pay more for the products that matter most to you”
Text below the images read:
“To help you find the best value on your favourite products, simply look for the red bubbles in store.”
Advertisement: Radio
“At Tesco, we believe that the best value isn’t just enjoyed by family. It’s inspired by family. That’s why we’re proud to introduce our selection of the 800 products that matter most to Irish families. From fresh Irish mince and blueberries to shampoo and baby wipes, 800 of your favourite products that you won’t pay more for when you shop at Tesco. Everyday all year round. Find the 800 in store and online today. Tesco, every little helps”
Newspaper 1
An advertisement featured photographs of:
(a) a filled sub roll with a round coloured circle inscribed with the text: “Sub Roll €5.90”.
(b) 13 grocery products with a round price tag beside with the words “All this for €5.88”.
Text below the images read:
“At Tesco we are committed to providing the best value to Irish Families.
The 800 are the products we know matter most to you. From your favourite Irish brands to the award-winning range of Tesco own-brand products sourced to the highest standards. Available in-store and online today.
You won’t pay more.”
To the right of the text, the ad featured a large red circle inscribed with the text in the centre which read:
“The 800”
Text around the inside edge of the circle read:
“At Tesco you won’t pay more for the products that matter most to you”
Newspaper 2
An advertisement featured a photograph of a filled shopping basket of well known branded products with the following headline:
“A helping hand for you and your family.”
Below the headline text featured a large red circle inscribed with the text in the centre
“The 800”
Additional text within around the circle read:
“You won’t pay more for the products that matter most to you”
Text below the images read:
“To help you find the best value on your favourite products, simply look for the red bubbles in store.”
Website
The advertiser’s website contained a page related to the advertising campaign which stated the following:
“The 800
The 800 that we’ve identified as being most important to you and your families and which we promise you won’t pay more for at Tesco.”
Underneath the text a video still image showed a young boy and girl at a kitchen table eating a pasta dish and a partially obscured person in the background. A ‘play’ icon featured in the centre.
To the right of the text, the ad featured a large red circle inscribed with the text in the centre which read:
“The 800”
Text around the inside edge of the circle read:
“At Tesco you won’t pay more for the products that matter most to you”
Text underneath the video still read:
“Some of the 800 products that matter to you”
The female voiceover accompanying the video, primarily showing the two children eating, and an adult female, contained the following content:
“Mince. Irish families buy more of it than any other meat. Probably because half of it never gets in their mouths. That’s why Irish mince is one of the 800 products that we discovered that matters most to Irish families and that you won’t pay more for when you shop at Tesco. Shampoo, incidentally, is another one”
The closing frame of the video contained the following:
To the left of the image, a large red circle featured, inscribed with the text in the centre which read:
“The 800”
To the right of the image, the following text appeared:
“Find the 800
in-store or online”
Complaint
Aldi Stores (Ireland) Ltd (the complainants) stated the that advertiser had run an advertising campaign on television and radio in which Tesco claimed that it was offering a selection of 800 products “that matter most to Irish families” which customers would not pay more for when they shopped at Tesco. The complainants also stated that the advertiser had simultaneously displayed promotional material containing similar claims/statements to the foregoing in its stores and on their website.
Issue 1.1
The complainants stated that the clear and unambiguous message of the campaign was that, in respect of a range of 800 products (the campaign) which matter most to families, consumers would not pay more for those products in the advertisers’ stores than they would pay in any of the advertisers’ competitor stores (including Aldi).
They maintained that the campaign was in breach of the S.I. No. 774 of 2007, being the European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 (the Regulations) . They stated that, accordingly, the campaign did not comply with ASAI Code. Specifically, Article 4(2) (d) of the Regulations required comparative advertising to be verifiable. Whilst accepting that it was not necessary for the advertisers to list the 800 products in their advertising (such as the print and radio advertisements), the campaign as originally operated by the advertisers did not satisfy the requirement for verifiability in circumstances where nowhere in any of the campaign material was it possible to identify which 800 products were the subject of the campaign. Referencing case precedence (Lidl v Colruyt) of the European Court of Justice (the CJEU), the complainants stated that such an advertisement would only satisfy the verifiability requirement if the content indicated where and how the consumers may readily identify the products comprised in the selection. There were no traceable details of which 800 products were comprised in the campaign. The complainants stated that, accordingly, the advertisers appeared to be saying that, in order for consumers to find out what 800 products were covered by the Campaign, they would have to go into its stores, and competitor’s stores, to identify each of the 800 products by reference to instore labels.
The complaints noted that, at one point in time, the advertisers changed their web content so that it included a list of 736 campaign based products. The complainants believed that this was a clear acceptance by the advertiser that the campaign, as originally operated, fell foul of the Code.
Subsequently, however, a check revealed that the list was no longer on the website. In circumstances where there was no longer a list on the campaign products website, they stated that the campaign remained in breach of the Code as there was no longer a means to identify the products concerned.
Issue 1.2
The advertisers’ website, following changes to amend content related to the campaign, was then purporting to include a list of the products in the campaign. However, the list concerned only identified 736 products. The complainants maintained that, accordingly, the Campaign was misleading insofar as it claimed to cover 800 products and was therefore in breach of the Code.
The complainants stated that they carried out an instore inspection in Tesco Extra, Naas to assess the possibility of establishing which 800 products were comprised in the campaign. From this inspection, the complaints stated that they identified only 434 of the products comprised in the campaign. The complainant raised this matter with the advertisers prior to submitting its complaint under the Code. The advertisers responded stating that some of the labels were lost or damaged at the Naas store and that the advertisers were taking remedial steps.
The complaints stated that they also commissioned a number of independent firms to carry out a similar inspection in a number of the advertisers’ other stores. The firms inspected sixteen such stores between 14th and 16th February 2018 and identified the number of ‘The 800’ products in each store, as listed below:
Number of products identified in the 800 campaign
Bailieborough 485
Birr 454
Blanchardstown 436
Clarehall 741
Finglas 411
Lucan 289
Mahon Point 663
Newbridge 780
Nutgrove 316
Santry 408
Tullamore 382
Wilton 619
The complainants stated that, accordingly, it was not possible to identify the 800 products the subject of the campaign in any of the stores visited. They stated that it was implicit in the claim that consumers would not pay more for the 800 products which the campaign covers and that consumers would be able to obtain any of the 800 products if they shopped in any Tesco supermarket. This was not the case and they believed that the campaign was seriously misleading under the Code and insofar as it was likely to lead customers to believe that they would be able to obtain any of the 800 products if they went into any Tesco supermarket but this was not so.
Issue 1.3
The complainants stated that the campaign was also being undertaken in Tesco Express and Tesco Metro stores and clearly these stores only contained a fraction of the products the subject matter of the Campaign.
Issue 1.4
The complainants contended that, insofar as the campaign claimed that, in respect of a range of 800 products which matter most to families, consumers would not pay more for those products in Tesco than they would pay in any of the advertisers’ competitors, this was a claim that consumers would regard as being objectively true in relation to the Code. The complainants also stated that it was clear what they had set out in relation to the Regulation’s requirements, and the failure of the advertisers to identify the particular products in the campaign in a given period, that the claims made by the campaign could not be verified or substantiated. The complainants stated that for the same reason the advertisers’ continued failure to identify the specific corresponding competing products (whether they were products of the complainant or other competitors of the advertisers) against which it was comparing its products meant that the claims made by the campaign could not be substantiated.
Issue 1.5
In reference to the print advertisement with the heading “A helping hand for you and your family.”, the complainants stated that the advertisement contained an image of a shopping basket which contained, amongst other things, images of three branded products. From checks carried out by the complainants on the advertisers’ website, they stated that it appeared that none of these products were in the campaign. Accordingly, they maintained that the advertisement was in breach of the Code in so far it suggested that the products depicted were part of the campaign and that consumers would not pay more for them in Tesco than they would pay elsewhere.
Issue 1.6
The complainants maintained that, furthermore, the failure in the print advertisement (“A helping hand for you and your family.”) to identify which products the claim related to or on what basis those products “matter most to consumers” rendered the claim incapable of verification or substantiation.
Issue 1.7
In addition, the advert claimed that “You will not pay more for the products that matter most to you”. The complainants stated that the advertisement did not make it clear that the foregoing claim only related to the 800 products comprised in the campaign. They maintained that the failure of the advert to confine the aforesaid claim to the 800 products in the campaign resulted in the advert, in effect, making a general claim that consumers would not pay more in Tesco for the products that matter most to them than they would pay elsewhere. The advertisers had absolutely no basis for claiming that consumers would not pay more in Tesco for the products that matter most to them than they would pay elsewhere and was in breach of the Code.
Issue 2
The complainants stated that, in circumstances where the Campaign did not clearly set out the basis on which the products in the Campaign had been selected as “the 800 products that matter most to Irish families”, the Campaign breached the Code regarding the use of comparisons.
Notwithstanding that the website purported to list, at a point in time, the products the subject of the campaign, the complainants maintained that the website did not list the corresponding products in the advertisers’ competitors’ stores (including the complainants) against which the advertisers’ products were being compared. The complainants contended that a comparative advertisement could only satisfy the verifiability requirements of Article 4(2)(d) of the Regulations if, in addition to identifying the advertisers’ products, the advert also identified the products of the competitor against which the comparison was being made. Through prior inter-party correspondence, the advertisers suggested that competitors’ comparable products could be identified by means of the campaign terms and conditions. The terms and conditions stated that the price of own label products were compared against the relevant products from the closest equivalent ranges in competing stores and that branded products were compared with identical products in competitors’ stores. The complainants did not accept that the terms and conditions concerned obviated the need for the advertisers to identify the specific competitor products against which the advertisers’ products were being compared.
The complainants referenced extracts from Lidl v Vierzon (CJEU) and stated that, having regard to that case, it followed that where a comparative advertisement compared a product with that of a competitor in circumstances where the competitor had a number of products which could correspond to the advertisers’ product, the advertisement must give details of the specific competitor’s product the subject of the comparison.
However, having considered the list of campaign products on the advertisers’ website, the complainants had identified a number of instances where there were a number of products which could correspond to the advertisers’ products in the campaign. The advertisers had not identified the specific corresponding Aldi product in any of those instances against which it was comparing its product. The complainants contended that, accordingly, the campaign, insofar as it failed to identify the specific competitor products against which Tesco products were being compared, continued to be in breach of the Regulation. Likewise, the campaign did not comply with Lidl v Vierzon and consequently, was in breach of Article 4(2)(d) of 2007 Regulations and the ASAI Code.
Issue 3
The complainants said that the advertisers’ initial failure to identify the products in the campaign and continued failure to clearly identify on what basis those products “matter most to Irish families” amounted to unfair competition.
Insofar as the advertisers did not originally identify the products in the campaign, the complainants and other competitors of the advertisers were not in a position to question the veracity of the claims made by the campaign and this gave the advertisers an unfair competitive advantage. The complainants contended that, for the same reason, the campaign’s continued failure to clearly identify on what basis the products, the subject of the campaign, “matter most to Irish families” gave the advertisers an unfair competitive advantage over its competitors.
The complainants stated that, furthermore, the advertisers’ failure to identify the products in the campaign over a specified period meant that the complainants and other competitors could not properly respond to the claims made by the campaign by, for example, lowering the price of the corresponding products in their stores. They contended that this was not only unfair to the advertisers’ competitors but also detrimental to consumers who would obviously benefit from such price reductions.
Response
Issue 1.1
The advertisers stated that they took very seriously the compliance of all marketing campaigns with both the ASAl’s Code of Standards for Advertising and Marketing Communications in Ireland (the Code) and the European Communities (Misleading and Comparative Marketing Communications) Regulations, 2007 (the 2007 Regulations) .
They stated that, consistent with their approach to all marketing campaigns, they undertook, and continued to undertake, extensive due diligence to ensure that ‘The 800’ Campaign would be clearly and easily understood by consumers, whilst respecting the letter and the spirit of the Code and the generally accepted principles of fair competition.
The advertisers stated that the campaign was verifiable, as required by Article 4 (2) (d) of the 2007 Regulations, both in relation to the Tesco products included in the Campaign, and their corresponding comparator products in competing supermarkets. At no time had Tesco failed to identify the products the subject of the Campaign as maintained by the complainants.
The advertisers stated that the complainants made several references to case-law of the Courts of Justice of the European Union (CJEU) on comparative advertising interpreting Directive 2006/114/EC, which the 2007 Regulations implement into Irish law. However, nowhere in the complaint did the complainants acknowledge the recent pertinent findings of the Irish Court of Appeal, in the leading Irish decision on comparative advertising in this jurisdiction, Aldi v Dunnes Stores (2017) IECA 117.
The advertisers’ position was that there was no requirement to specifically identify the competing products against which Tesco’s 800 products were compared, as the basis of their selection was clear and there was no risk of confusion to consumers.
The advertisers rejected that the advertising in any way breached paragraph 3.2 of the Code, on the grounds of illegality or otherwise.
‘The 800’ Campaign message being conveyed to consumers in the campaign was that at Tesco they “won’t pay more” for the 800 products which “matter most” to them. The advertisers maintained that they were not making a general claim in relation to price savings; rather, the claim related to the specific products identified as being included in the Campaign. They stated that they had taken extensive steps to make it obvious to consumers shopping in Tesco (whether in-store or online) whether a particular product was (or was not) included in the Campaign and accordingly whether it was a product in respect of which Tesco were claiming they would not pay more for than they would in a competitor supermarket.
It was made clear in advertisements relating to the Campaign that products in ‘The 800’’ could be found in-store and/or online. They stated that when a consumer went in-store, products in ‘The 800’ were identified by way of red circular shelf-edge labels containing the words ‘The 800’, which were identical to those used in advertisements and marketing materials relating to the campaign. When a consumer shopped online, it was clear from the product’s description whether it was included in ‘The 800’, which contained the following tagline: “This product features as part of The 800”. As such, products in ‘The 800’ could be individually and specifically identified on the basis of the information contained in advertisements relating to the Campaign. The advertisers stated that they did not understand how the complainants could assert that consumers were not able to “readily” identify what products were, or were not, included in the Campaign. They stated that the issue seemed to be that it was tedious and time consuming for the complainants’ staff to have to go to Tesco stores and locate all of the products in ‘The 800’.
The advertisers stated that they accepted that it may take time to prepare a list of all 800 products on the basis of the shelf-edge labels used to identify products included in the campaign instore. They stated, however, that they would not expect that the exercise undertaken by Aldi, as one of their competitors, was one which most consumers would consider necessary to undertake. They maintained that, in any event, the length of time it may take the complainants (or a consumer) to produce a list of all of the products included in the campaign was not relevant to the requirement that the campaign was verifiable.
They stated that, in summary, their position was that consumers were in a position to identify the corresponding competitor products against which ‘The 800’ products had been compared and there was no risk of confusion in this regard.
The advertisers contended that updating terms and conditions was a normal part of any retail offer and they would not accept that such amendments could be characterised as a concession that there was any prior deficiency.
Issue 1.2
The advertisers also said that the Campaign included 800 products. They stated that the scenario identified by the complainants in which only 736 products were listed related to the stock availability of certain products in a specific store, at a specific point in time. In scenarios where products included in ‘The 800’ may not be available for a limited period, or where a shelf-edge label identifying a product had been temporarily lost or damaged, there were no risk of consumers being misled. They explained that this was because the campaign involved price claims on specifically identified products, and not in relation to the prices of products in Tesco generally.
They noted the complainants’ contention that in some instances, it was not able to identify all 800 products in store. The numbers of ‘The 800’ products stocked in the stores referenced in the complaint were not correct; it was not clear how these figures were calculated. The advertisers stated that they had identified that shelf -edge labels were lost or damaged on the shop floor and that such ‘wear and tear’ was normal in the course of supermarket retailing businesses. To minimise this occurring, the advertisers stated that they had instructed store managers to continuously monitor and replace lost or damaged labels as part of daily store operations. However, where it was the case that a shelf-edge label was lost or stolen, there was no risk of a consumer being misled as to whether or not a product was included in ‘The 800’. Since the product was not labelled as being included in ‘The 800’ (even if it were), the consumer’s decision to purchase the product could not be based on a belief that the advertisers were making a price claim in relation to the product.
Issue 1.3
They stated that they had never represented that all of ‘The 800’ products would be available in their ‘Express’ and ‘Metro’ stores. They explained that clearly these different store formats stocked smaller products ranges than other Tesco store types. They stated that, however, where products included in ‘The 800’ Campaign were sold in these stores, they were sold at the same prices as in their supermarket stores.
Issue 1.4
They stated that they did not accept the complainants’ claim that the campaign is (or was at any stage) not substantiated on the basis that either the particular campaign products, or the specific corresponding competing products against which those products were compared, could not be verified.
Issue 1.5
The advertisers stated that all products pictured in the basket, referred to in the advertisement were included in the campaign and identified on their website with the following tagline: “This product features as part of The 800” (the advertiser submitted sample screenshot to the Executive).They stated that the tagline appeared online beside all products included in the campaign. They maintained that customers could therefore easily verify whether a particular product was included in the Campaign. They did not accept that there was any requirement to provide a full list of products.
Issue 1.6
The advertisers maintained that all aspects of the campaign could be substantiated and that they had undertaken extensive due diligence steps prior to, and during, the campaign to validate the claims being made. They added that the basis upon which ‘The 800’products had been identified as being those which “matter most” to consumers were explained in the campaign terms and conditions which stated: “ ‘The 800’ are the 800 products from the total Tesco product range (including branded and own label products) that Tesco consider matter most to our customers.” They stated that they had selected those products based on a number of key criteria. They stated that the criteria included, for example, how much and how often their customers purchased these products in their stores; market information about consumers’ purchasing behaviour more generally and in competing supermarkets, including information from independent sources such as Kantor Worldpanel, Dunnhumby and Nielsen. They added that they had included key products across all product categories to ensure that ‘The 800’ was representative of a full basket shop for all customers.
By way of further information, the advertisers stated that they took into account various factors to identify and rank products for inclusion in ‘The 800’. These factors included the product’s composite ranking, based on customer and basket penetration by utilising third party data on the percentage of customers that purchased the product, and the percentage of baskets that product appeared in; the average weekly volume of the product sold in Tesco stores over a 52 week period (based on Tesco till data); the volume of identical branded or comparable own label products sold in competitor stores, where available, based on rankings taken from independent third party data; the importance of the product in the market, based on third party independent data. While they stated that the criteria outlined was primarily volume based, they also took into account whether certain products were key products in a particular category, regardless of volumes sold, so as to ensure that ‘The 800’ included a full spread of products that matter to Irish families. This was because certain products had longer purchase cycles, and were not necessarily bought by customers with the same frequency, but they were nevertheless important to customers.
Issue 1.7
The advertisers stated that it was obvious that the statement “You will not pay more for the products that matter most to you” applied to ‘The 800’ products only. They added that the relevant text was contained in a red circular logo containing the words ‘The 800’.
Issue 2
The advertisers rejected the complainants’ allegation that the basis upon which ‘The 800’ products had been selected was not clearly set out. They stated that the detailed, robust and objective criteria which had been used by them to identify ‘The 800’ products which “matter most” to consumers was clearly explained in the campaign terms and conditions.
The advertisers stated that in any event, products included in ‘The 800’ were specifically identified so that it was very clear to consumers (and to Aldi as a competitor) whether or not Tesco was making a price claim in respect of a specific product.
They stated that the passages quoted by Aldi from paragraphs 62 to 63 of the CJEU’s judgment in Lid/ v Vierzon referred to a scenario where it transpired that competitor stores marketed a number of products which might potentially be comparable so that it was not possible to identify precisely the goods compared. They noted that that while the complainants maintained that it had identified “several instances” where it had a number of products which could correspond to the products included in ‘The 800’, they had failed to furnish a single example of this, either in this complaint, or previous correspondence.
The advertisers also noted that the complainants appeared to have ignored the Court of Appeal’s recent decision in Aldi v Dunnes Stores (2017) IECA 116, which contained a number of passages which were relevant to the issue of verifiability and the identification of competing comparable products. They stated that, in summary, the Court of Appeal held that it was not necessary for compared goods to be lined up or pictured or more specifically identified, where there was no difficulty in identifying the relevant matching item, and provided there was no risk of confusion to consumers.
Issue 3
The advertisers responded stating that the campaign fully respected the principles of fair competition. They maintained that as outlined earlier in their response the criteria used to identify ‘The 800’ products which “matter most” to consumers were clearly explained in the Campaign terms and conditions, and further detail had been provided in their response.
They stated that, furthermore, they did not accept that Tesco had at any stage failed to identify the products the subject of the Campaign such that the complainants were not in a position to question the veracity of the price claims being made, and/or respond accordingly. They stated that they must point out that while the complainants had claimed that in a number of instances, they has more than one potentially comparable product, they had not backed this up by providing any specific examples.
The advertisers stated, in conclusion, the campaign was fully compliant with the 2007 Regulations and the ASAI Code. They stated that they had undertaken, and continued to undertake, extensive due diligence to ensure that this was the case. They did not accept that there was any detriment to consumers and had not received any complaints from customers in relation to the campaign since it was launched.
Further information:
The Executive reviewed the terms and conditions which the advertiser provided. The Executive noted the content on how the advertiser conducted comparable competitor product evaluations.
The Executive also noted that the content did not reference the number of participating stores or the extent and availability to which the compliment of products in the campaign would be available in each store.
The Executive reviewed the legislation and Court judgements referred to by the complainants and advertisers.
Conclusion
Aldi Stores (Ireland) Ltd (the complainants) stated the that advertiser had run an advertising campaign on television and radio in which Tesco claimed that it was offering a selection of 800 products “that matter most to Irish families” which customers would not pay more for when they shopped at Tesco. The complainants also stated that the advertiser had simultaneously displayed promotional material containing similar claims/statements to the foregoing in its stores and on their website.
Issue 1.1
The complainants stated that the clear and unambiguous message of the campaign was that, in respect of a range of 800 products (the campaign) which matter most to families, consumers would not pay more for those products in the advertisers’ stores than they would pay in any of the advertisers’ competitor stores (including Aldi).
They maintained that the campaign was in breach of the S.I. No. 774 of 2007, being the European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 (the Regulations) . They stated that, accordingly, the campaign did not comply with ASAI Code. Specifically, Article 4(2) (d) of the Regulations required comparative advertising to be verifiable. Whilst accepting that it was not necessary for the advertisers to list the 800 products in their advertising (such as the print and radio advertisements), the campaign as originally operated by the advertisers did not satisfy the requirement for verifiability in circumstances where nowhere in any of the campaign material was it possible to identify which 800 products were the subject of the campaign. Referencing case precedence (Lidl v Colruyt) of the European Court of Justice (the CJEU), the complainants stated that such an advertisement would only satisfy the verifiability requirement if the content indicated where and how the consumers may readily identify the products comprised in the selection. There were no traceable details of which 800 products were comprised in the campaign. The complainants stated that, accordingly, the advertisers appeared to be saying that, in order for consumers to find out what 800 products were covered by the Campaign, they would have to go into its stores, and competitor’s stores, to identify each of the 800 products by reference to instore labels.
The complaints noted that, at one point in time, the advertisers changed their web content so that it included a list of 736 campaign based products. The complainants believed that this was a clear acceptance by the advertiser that the campaign, as originally operated, fell foul of the Code.
Subsequently, however, a check revealed that the list was no longer on the website. In circumstances where there was no longer a list on the campaign products website, they stated that the campaign remained in breach of the Code as there was no longer a means to identify the products concerned.
Issue 1.2
The advertisers’ website, following changes to amend content related to the campaign, was then purporting to include a list of the products in the campaign. However, the list concerned only identified 736 products. The complainants maintained that, accordingly, the Campaign was misleading insofar as it claimed to cover 800 products and was therefore in breach of the Code.
The complainants stated that they carried out an instore inspection in Tesco Extra, Naas to assess the possibility of establishing which 800 products were comprised in the campaign. From this inspection, the complaints stated that they identified only 434 of the products comprised in the campaign. The complainant raised this matter with the advertisers prior to submitting its complaint under the Code. The advertisers responded stating that some of the labels were lost or damaged at the Naas store and that the advertisers were taking remedial steps.
The complaints stated that they also commissioned a number of independent firms to carry out a similar inspection in a number of the advertisers’ other stores. The firms inspected sixteen such stores between 14th and 16th February 2018 and identified the number of ‘The 800’ products in each store, as listed below:
Number of products identified in the 800 campaign
Bailieborough 485
Birr 454
Blanchardstown 436
Clarehall 741
Finglas 411
Lucan 289
Mahon Point 663
Newbridge 780
Nutgrove 316
Santry 408
Tullamore 382
Wilton 619
The complainants stated that, accordingly, it was not possible to identify the 800 products the subject of the campaign in any of the stores visited. They stated that it was implicit in the claim that consumers would not pay more for the 800 products which the campaign covers and that consumers would be able to obtain any of the 800 products if they shopped in any Tesco supermarket. This was not the case and they believed that the campaign was seriously misleading under the Code and insofar as it was likely to lead customers to believe that they would be able to obtain any of the 800 products if they went into any Tesco supermarket but this was not so.
Issue 1.3
The complainants stated that the campaign was also being undertaken in Tesco Express and Tesco Metro stores and clearly these stores only contained a fraction of the products the subject matter of the Campaign.
Issue 1.4
The complainants contended that, insofar as the campaign claimed that, in respect of a range of 800 products which matter most to families, consumers would not pay more for those products in Tesco than they would pay in any of the advertisers’ competitors, this was a claim that consumers would regard as being objectively true in relation to the Code. The complainants also stated that it was clear what they had set out in relation to the Regulation’s requirements, and the failure of the advertisers to identify the particular products in the campaign in a given period, that the claims made by the campaign could not be verified or substantiated. The complainants stated that for the same reason the advertisers’ continued failure to identify the specific corresponding competing products (whether they were products of the complainant or other competitors of the advertisers) against which it was comparing its products meant that the claims made by the campaign could not be substantiated.
Issue 1.5
In reference to the print advertisement with the heading “A helping hand for you and your family.”, the complainants stated that the advertisement contained an image of a shopping basket which contained, amongst other things, images of three branded products. From checks carried out by the complainants on the advertisers’ website, they stated that it appeared that none of these products were in the campaign. Accordingly, they maintained that the advertisement was in breach of the Code in so far it suggested that the products depicted were part of the campaign and that consumers would not pay more for them in Tesco than they would pay elsewhere.
Issue 1.6
The complainants maintained that, furthermore, the failure in the print advertisement (“A helping hand for you and your family.”) to identify which products the claim related to or on what basis those products “matter most to consumers” rendered the claim incapable of verification or substantiation.
Issue 1.7
In addition, the advert claimed that “You will not pay more for the products that matter most to you”. The complainants stated that the advertisement did not make it clear that the foregoing claim only related to the 800 products comprised in the campaign. They maintained that the failure of the advert to confine the aforesaid claim to the 800 products in the campaign resulted in the advert, in effect, making a general claim that consumers would not pay more in Tesco for the products that matter most to them than they would pay elsewhere. The advertisers had absolutely no basis for claiming that consumers would not pay more in Tesco for the products that matter most to them than they would pay elsewhere and was in breach of the Code.
Issue 2
The complainants stated that, in circumstances where the Campaign did not clearly set out the basis on which the products in the Campaign had been selected as “the 800 products that matter most to Irish families”, the Campaign breached the Code regarding the use of comparisons.
Notwithstanding that the website purported to list, at a point in time, the products the subject of the campaign, the complainants maintained that the website did not list the corresponding products in the advertisers’ competitors’ stores (including the complainants) against which the advertisers’ products were being compared. The complainants contended that a comparative advertisement could only satisfy the verifiability requirements of Article 4(2)(d) of the Regulations if, in addition to identifying the advertisers’ products, the advert also identified the products of the competitor against which the comparison was being made. Through prior inter-party correspondence, the advertisers suggested that competitors’ comparable products could be identified by means of the campaign terms and conditions. The terms and conditions stated that the price of own label products were compared against the relevant products from the closest equivalent ranges in competing stores and that branded products were compared with identical products in competitors’ stores. The complainants did not accept that the terms and conditions concerned obviated the need for the advertisers to identify the specific competitor products against which the advertisers’ products were being compared.
The complainants referenced extracts from Lidl v Vierzon (CJEU) and stated that, having regard to that case, it followed that where a comparative advertisement compared a product with that of a competitor in circumstances where the competitor had a number of products which could correspond to the advertisers’ product, the advertisement must give details of the specific competitor’s product the subject of the comparison.
However, having considered the list of campaign products on the advertisers’ website, the complainants had identified a number of instances where there were a number of products which could correspond to the advertisers’ products in the campaign. The advertisers had not identified the specific corresponding Aldi product in any of those instances against which it was comparing its product. The complainants contended that, accordingly, the campaign, insofar as it failed to identify the specific competitor products against which Tesco products were being compared, continued to be in breach of the Regulation. Likewise, the campaign did not comply with Lidl v Vierzon and consequently, was in breach of Article 4(2)(d) of 2007 Regulations and the ASAI Code.
Issue 3
The complainants said that the advertisers’ initial failure to identify the products in the campaign and continued failure to clearly identify on what basis those products “matter most to Irish families” amounted to unfair competition.
Insofar as the advertisers did not originally identify the products in the campaign, the complainants and other competitors of the advertisers were not in a position to question the veracity of the claims made by the campaign and this gave the advertisers an unfair competitive advantage. The complainants contended that, for the same reason, the campaign’s continued failure to clearly identify on what basis the products, the subject of the campaign, “matter most to Irish families” gave the advertisers an unfair competitive advantage over its competitors.
The complainants stated that, furthermore, the advertisers’ failure to identify the products in the campaign over a specified period meant that the complainants and other competitors could not properly respond to the claims made by the campaign by, for example, lowering the price of the corresponding products in their stores. They contended that this was not only unfair to the advertisers’ competitors but also detrimental to consumers who would obviously benefit from such price reductions.
The advertisers responded to the complaints as follows:
Issue 1.1
The advertisers stated that they took very seriously the compliance of all marketing campaigns with both the ASAl’s Code of Standards for Advertising and Marketing Communications in Ireland (the Code) and the European Communities (Misleading and Comparative Marketing Communications) Regulations, 2007 (the 2007 Regulations) .
They stated that, consistent with their approach to all marketing campaigns, they undertook, and continued to undertake, extensive due diligence to ensure that ‘The 800’ Campaign would be clearly and easily understood by consumers, whilst respecting the letter and the spirit of the Code and the generally accepted principles of fair competition.
The advertisers stated that the campaign was verifiable, as required by Article 4 (2) (d) of the 2007 Regulations, both in relation to the Tesco products included in the Campaign, and their corresponding comparator products in competing supermarkets. At no time had Tesco failed to identify the products the subject of the Campaign as maintained by the complainants.
The advertisers stated that the complainants made several references to case-law of the Courts of Justice of the European Union (CJEU) on comparative advertising interpreting Directive 2006/114/EC, which the 2007 Regulations implement into Irish law. However, nowhere in the complaint did the complainants acknowledge the recent pertinent findings of the Irish Court of Appeal, in the leading Irish decision on comparative advertising in this jurisdiction, Aldi v Dunnes Stores (2017) IECA 117.
The advertisers’ position was that there was no requirement to specifically identify the competing products against which Tesco’s 800 products were compared, as the basis of their selection was clear and there was no risk of confusion to consumers.
The advertisers rejected that the advertising in any way breached paragraph 3.2 of the Code, on the grounds of illegality or otherwise.
‘The 800’ Campaign message being conveyed to consumers in the campaign was that at Tesco they “won’t pay more” for the 800 products which “matter most” to them. The advertisers maintained that they were not making a general claim in relation to price savings; rather, the claim related to the specific products identified as being included in the Campaign. They stated that they had taken extensive steps to make it obvious to consumers shopping in Tesco (whether in-store or online) whether a particular product was (or was not) included in the Campaign and accordingly whether it was a product in respect of which Tesco were claiming they would not pay more for than they would in a competitor supermarket.
It was made clear in advertisements relating to the Campaign that products in ‘The 800’’ could be found in-store and/or online. They stated that when a consumer went in-store, products in ‘The 800’ were identified by way of red circular shelf-edge labels containing the words ‘The 800’, which were identical to those used in advertisements and marketing materials relating to the campaign. When a consumer shopped online, it was clear from the product’s description whether it was included in ‘The 800’, which contained the following tagline: “This product features as part of The 800”. As such, products in ‘The 800’ could be individually and specifically identified on the basis of the information contained in advertisements relating to the Campaign. The advertisers stated that they did not understand how the complainants could assert that consumers were not able to “readily” identify what products were, or were not, included in the Campaign. They stated that the issue seemed to be that it was tedious and time consuming for the complainants’ staff to have to go to Tesco stores and locate all of the products in ‘The 800’.
The advertisers stated that they accepted that it may take time to prepare a list of all 800 products on the basis of the shelf-edge labels used to identify products included in the campaign instore. They stated, however, that they would not expect that the exercise undertaken by Aldi, as one of their competitors, was one which most consumers would consider necessary to undertake. They maintained that, in any event, the length of time it may take the complainants (or a consumer) to produce a list of all of the products included in the campaign was not relevant to the requirement that the campaign was verifiable.
They stated that, in summary, their position was that consumers were in a position to identify the corresponding competitor products against which ‘The 800’ products had been compared and there was no risk of confusion in this regard.
The advertisers contended that updating terms and conditions was a normal part of any retail offer and they would not accept that such amendments could be characterised as a concession that there was any prior deficiency.
Issue 1.2
The advertisers also said that the Campaign included 800 products. They stated that the scenario identified by the complainants in which only 736 products were listed related to the stock availability of certain products in a specific store, at a specific point in time. In scenarios where products included in ‘The 800’ may not be available for a limited period, or where a shelf-edge label identifying a product had been temporarily lost or damaged, there were no risk of consumers being misled. They explained that this was because the campaign involved price claims on specifically identified products, and not in relation to the prices of products in Tesco generally.
They noted the complainants’ contention that in some instances, it was not able to identify all 800 products in store. The numbers of ‘The 800’ products stocked in the stores referenced in the complaint were not correct; it was not clear how these figures were calculated. The advertisers stated that they had identified that shelf -edge labels were lost or damaged on the shop floor and that such ‘wear and tear’ was normal in the course of supermarket retailing businesses. To minimise this occurring, the advertisers stated that they had instructed store managers to continuously monitor and replace lost or damaged labels as part of daily store operations. However, where it was the case that a shelf-edge label was lost or stolen, there was no risk of a consumer being misled as to whether or not a product was included in ‘The 800’. Since the product was not labelled as being included in ‘The 800’ (even if it were), the consumer’s decision to purchase the product could not be based on a belief that the advertisers were making a price claim in relation to the product.
Issue 1.3
They stated that they had never represented that all of ‘The 800’ products would be available in their ‘Express’ and ‘Metro’ stores. They explained that clearly these different store formats stocked smaller products ranges than other Tesco store types. They stated that, however, where products included in ‘The 800’ Campaign were sold in these stores, they were sold at the same prices as in their supermarket stores.
Issue 1.4
They stated that they did not accept the complainants’ claim that the campaign is (or was at any stage) not substantiated on the basis that either the particular campaign products, or the specific corresponding competing products against which those products were compared, could not be verified.
Issue 1.5
The advertisers stated that all products pictured in the basket, referred to in the advertisement were included in the campaign and identified on their website with the following tagline: “This product features as part of The 800” (the advertiser submitted sample screenshot to the Executive).They stated that the tagline appeared online beside all products included in the campaign. They maintained that customers could therefore easily verify whether a particular product was included in the Campaign. They did not accept that there was any requirement to provide a full list of products.
Issue 1.6
The advertisers maintained that all aspects of the campaign could be substantiated and that they had undertaken extensive due diligence steps prior to, and during, the campaign to validate the claims being made. They added that the basis upon which ‘The 800’products had been identified as being those which “matter most” to consumers were explained in the campaign terms and conditions which stated: “ ‘The 800’ are the 800 products from the total Tesco product range (including branded and own label products) that Tesco consider matter most to our customers.” They stated that they had selected those products based on a number of key criteria. They stated that the criteria included, for example, how much and how often their customers purchased these products in their stores; market information about consumers’ purchasing behaviour more generally and in competing supermarkets, including information from independent sources such as Kantor Worldpanel, Dunnhumby and Nielsen. They added that they had included key products across all product categories to ensure that ‘The 800’ was representative of a full basket shop for all customers.
By way of further information, the advertisers stated that they took into account various factors to identify and rank products for inclusion in ‘The 800’. These factors included the product’s composite ranking, based on customer and basket penetration by utilising third party data on the percentage of customers that purchased the product, and the percentage of baskets that product appeared in; the average weekly volume of the product sold in Tesco stores over a 52 week period (based on Tesco till data); the volume of identical branded or comparable own label products sold in competitor stores, where available, based on rankings taken from independent third party data; the importance of the product in the market, based on third party independent data. While they stated that the criteria outlined was primarily volume based, they also took into account whether certain products were key products in a particular category, regardless of volumes sold, so as to ensure that ‘The 800’ included a full spread of products that matter to Irish families. This was because certain products had longer purchase cycles, and were not necessarily bought by customers with the same frequency, but they were nevertheless important to customers.
Issue 1.7
The advertisers stated that it was obvious that the statement “You will not pay more for the products that matter most to you” applied to ‘The 800’ products only. They added that the relevant text was contained in a red circular logo containing the words ‘The 800’.
Issue 2
The advertisers rejected the complainants’ allegation that the basis upon which ‘The 800’ products had been selected was not clearly set out. They stated that the detailed, robust and objective criteria which had been used by them to identify ‘The 800’ products which “matter most” to consumers was clearly explained in the campaign terms and conditions.
The advertisers stated that in any event, products included in ‘The 800’ were specifically identified so that it was very clear to consumers (and to Aldi as a competitor) whether or not Tesco was making a price claim in respect of a specific product.
They stated that the passages quoted by Aldi from paragraphs 62 to 63 of the CJEU’s judgment in Lid/ v Vierzon referred to a scenario where it transpired that competitor stores marketed a number of products which might potentially be comparable so that it was not possible to identify precisely the goods compared. They noted that that while the complainants maintained that it had identified “several instances” where it had a number of products which could correspond to the products included in ‘The 800’, they had failed to furnish a single example of this, either in this complaint, or previous correspondence.
The advertisers also noted that the complainants appeared to have ignored the Court of Appeal’s recent decision in Aldi v Dunnes Stores (2017) IECA 116, which contained a number of passages which were relevant to the issue of verifiability and the identification of competing comparable products. They stated that, in summary, the Court of Appeal held that it was not necessary for compared goods to be lined up or pictured or more specifically identified, where there was no difficulty in identifying the relevant matching item, and provided there was no risk of confusion to consumers.
Issue 3
The advertisers responded stating that the campaign fully respected the principles of fair competition. They maintained that as outlined earlier in their response the criteria used to identify ‘The 800’ products which “matter most” to consumers were clearly explained in the Campaign terms and conditions, and further detail had been provided in their response.
They stated that, furthermore, they did not accept that Tesco had at any stage failed to identify the products the subject of the Campaign such that the complainants were not in a position to question the veracity of the price claims being made, and/or respond accordingly. They stated that they must point out that while the complainants had claimed that in a number of instances, they has more than one potentially comparable product, they had not backed this up by providing any specific examples.
The advertisers stated, in conclusion, the campaign was fully compliant with the 2007 Regulations and the ASAI Code. They stated that they had undertaken, and continued to undertake, extensive due diligence to ensure that this was the case. They did not accept that there was any detriment to consumers and had not received any complaints from customers in relation to the campaign since it was launched.
The Executive reviewed the terms and conditions which the advertiser provided. The Executive noted the content on how the advertiser conducted comparable competitor product evaluations.
The Executive also noted that the content did not reference the number of participating stores or the extent and availability to which the compliment of products in the campaign would be available in each store.
The Executive reviewed the legislation and Court judgements referred to by the complainants and advertisers
2.4 (c) Compliance with the Code is assessed in the light of a marketing communication’s probable effect when taken as a whole and in context.
Particular attention is paid to:
• the characteristics of the likely audience
• the media by means of which the marketing communication is communicated
• the location and context of the marketing communication
• the nature of the advertised product and the nature, content and form of any associated material made available or action recommended to consumers.
3.2 Marketing communications should be legal, decent, honest and truthful.
3.4 Marketing communications should respect the principles of fair competition generally accepted in business.
4.1 A marketing communication should not mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.
4.4 Advertisers should not exploit the credulity, inexperience or lack of knowledge of consumers.
4.5 The design and presentation of marketing communications should allow them to be easily and clearly understood.
4.6 Disclaimers, asterisked, footnoted or “small print” information should not contradict more prominent aspects of the message. Such information should be of sufficient size and/or prominence and be located and presented in such a manner as to be clearly and easily legible and/or audible; where appropriate such information should be linked to the relevant part of the main copy.
4.7 Whether the presentation of information is insufficient or likely to mislead depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the advertiser takes to make that information available to the consumer by other reasonably accessible means.
4.9 A marketing communication should not contain claims – whether direct or indirect, expressed or implied – which a consumer would be likely to regard as being objectively true unless the objective truth of the claims can be substantiated
4.10 Before offering a marketing communication for publication, advertisers should satisfy themselves that they will be able to provide documentary evidence to substantiate all claims that consumers are likely to regard as objective. Relevant evidence should be sent without delay if requested by the ASAI and should be adequate to support both detailed claims and the overall impression created by the marketing communication.
4.28 Where there is limited availability of some or all of the products advertised, apart from indicating that there may be other terms and conditions which apply, advertisers should:
(a) not exaggerate the availability of any of those products, and
(b) be able to demonstrate that there is a reasonable supply or proportion of each of the various products available.
4.31 Comparisons are permitted in the interests of public information and vigorous competition. They can be explicit or implied and can relate to advertisers’ own products or those of their competitors. Marketing communications that do not identify a specific competitor can still be considered to contain an implicit comparative claim as a comparison could be made with all competition within an industry, for example, unqualified superlative claims.
4.32 Comparisons should be fair and should not give rise to a likelihood of a consumer being misled. In any marketing communication that uses comparisons, the basis of selection should be clear and the elements of comparison should not be unfairly selected in a way that gives the advertisers an artificial advantage.
The Complaints Committee considered the detail of the complaint and the advertisers’ response. They noted the references to relevant legislation and legal cases and, whilst taking account of the content concerned, they considered these matters in relation to the application of the Code rather than the interpretation or application of those legal matters themselves.
Issue 1.1
Complaint Upheld.
The Complaints Committee noted the complainants’ acceptance that it was not necessary for the list of the 800 products and the comparator products to be stated in the advertising. They considered that the claim “You will not pay more” was an implied price comparison against all of the advertisers’ competitors in relation to ‘The 800’ products in the campaign.
They noted that the advertisers’ statement that consumers were in a position to identify the corresponding competitor products against which ‘The 800’ products had been compared.
The Committee considered, however, that in order for a consumer to so identify the competitor products (and their price, a key element of a price comparison), the consumer would have to visit a least one store of each of the advertisers’ competitors.
In the circumstances, the Committee considered that in this regard, the advertising was likely to mislead by omission and was likely to exploit the lack of knowledge of consumers.
Issue 1.2
Complaint Upheld.
The Complaints Committee noted that the advertisement aired on radio claimed that ‘The 800’ would be available when shopping instore nationwide throughout the year. These factors constituted an absolute claim. The claim and associated terms and conditions did not place limitations on instore availability or store location. The Committee fully accepted that products promoted in a campaign may run out of stock temporarily which would not, in itself, constitute a breach under the Code.
Nevertheless, the Committee noted that while the advertisers disputed data in the complaint regarding the campaign products stocked in some of its stores, the Code placed the onus on the advertiser to substantiate their claims and they had not done so sufficiently in this regard. The Committee considered that this was misleading and in breach of the Code.
Issue 1.3
Complaint Upheld.
The Committee noted that while the advertisers’ ‘Express’ and ‘Metro’ stores had participated in the campaign, they did not carry the full stock within the campaign. They noted that the advertising had not made a distinction between the stores types and the possible impact on availability. Accordingly, they considered that this was misleading and in breach of the Code.
Issue 1.4
Complaint Upheld.
The Complaints Committee reviewed the claim of not paying more and not paying more for products that mattered most to consumers. They noted that the absolute claim was qualified with direction on how to identify products within the campaign by way of reference to a specific campaign tag. The Committee also noted the advertisers’ acceptance that it may take time for consumers to prepare a list of all 800 products in-store from shelf-edge labels and that online product identification was through observing a campaign tagline accompanying the product descriptions. They noted the unavailability of a single campaign product and price listing for the entire products in the campaign. They considered that, in the absence of a listing, consumers would have an inability to identify and compare the campaign products. Accordingly, consumers were likely to be misled by omission and this was held to be in breach of the Code.
Issue 1.5
Complaint Not Upheld.
The Committee noted the advertisers’ comments on the examples of three named products in reference to their inclusion or otherwise in the campaign. They considered the advertisers’ supporting website evidence and considered that this substantiated the claim in relation to the three identified products and was not in breach of the Code.
Issue 1.6
Complaint Not Upheld.
The Complaints Committee noted the advertisers’ comments that the basis upon which the campaign products had been identified as being those which mattered most to consumers was explained in the campaign terms and conditions. They noted that additional substantiating information was provided by the advertisers’, including reference to non-customer, independently sourced and competitor data. The Complaints Committee considered that the claims made had been sufficiently substantiated. This aspect of the complaint was not upheld.
Issue 1.7
Complaint Not Upheld.
The Committee reviewed the aspect of the complaint on whether the marketing claims concerned would be considered to be referring to the campaign products or all of the advertisers’ products. They noted the ad content concerned was displayed directly next to the campaign name which specifically named the limited number of products in the campaign. Accordingly, they did not consider that consumers would be likely to be misled and the claim was not in breach of the Code.
Issue 2
Complaint Upheld.
The Complaints Committee noted the advertisers’ basis for selecting the advertisers’ products. The Committee noted the absence of competitor data to compare against the advertisers’ campaign data. Accordingly, they considered that it was likely that consumers would find it challenging to make price comparisons across the full suite of products in the campaign which constituted a breach of sections 4.4 and 4.32 of the Code.
Issue 3
Complaint Upheld in part.
The Complaints Committee noted that the advertisers has explained in the campaign website how they had chosen the products in the campaign. However, the Complaints Committee also noted that the advertisers had compiled and controlled the pricing and choice of products which they stated mattered most to Irish families. The advertisers were in a position to change the products’ base prices if competitors changed their own pricing. Competitors would not have been in a position to fully compare product offerings across the range of advertisers’ stores and so competitors’ ability to make commercially informed decisions was compromised. In the context of the Code requirement that marketing communications should respect the principles of fair competition generally accepted in business, the Complaints Committee considered that this element of the complaint was in breach of section 3.4 of the Code.
ACTION REQUIRED:
The advertisers should ensure that comparative information is readily available.
