ASA ruling on Boohoo.com – “Up to x% off everything” and countdown clocks
Can retailers use time limited offers on their website (eg using countdown clocks), and claim they have a sale of “up to x% off everything?”. Does the line “applicable to selected lines only” work as a disclaimer if not “all” your products benefit from the discount?The key takeaway
Retailers are not allowed to imply that all products are included in an offer if certain products are excluded. Retailers should also not use time limited discount offers if that is not the case.
Two ads for the online fashion retailer, Boohoo.com UK Ltd t/a Boohoo, were seen in November 2019:
- Ad (a): An email featured a headline which stated, “UP TO 60% OFF EVERYTHING* + AN EXTRA 10% OFF DRESSES, TOPS AND JUMPSUITS**”. Smaller text below stated, “USE CODE: PARTY10 ENDS MIDNIGHT”. The corresponding asterisk stated, “*Up to 60% off everything is automatically applied and applicable to selected lines only. Limited time only. ** Use code PARTY10 for an extra 10% off dresses, tops & jumpsuits. Excluding sale and applicable to selected lines only. Ends midnight 04.11.2019”.
- Ad (b): The Boohoo home page displayed a headline which stated “UP TO 75% OFF ABSOLUTELY EVERYTHING + AN EXTRA 10% OFF! CODE: EXTRA. ENDS 10PM”. There was a banner at the top of the page which stated, “FREE NEXT DAY DELIVERY ENDS IN: 00:50:45”. At 10pm the Boohoo home page displayed the headline, “UP TO 75% OFF ABSOLUTELY EVERYTHING + AN EXTRA 10% OFF! CODE: EXTRA. ENDS 11PM”. There was another banner at the top of the page which stated, “FREE DELIVERY ENDS IN: 00:59:17”.
The ASA received complaints that:
• the claim “up to 60% off everything” in Ad (a) only applied to selected items, thus complainants challenged whether the claim was misleading
• the offers reset after the countdown clock reached zero, therefore the complainants challenged whether Ad (b) misleadingly implied “UP TO 75% OFF ABSOLUTELY EVERYTHING + AN EXTRA 10% OFF!” would revert to the higher price once the countdown was over.
Boohoo stated that the asterisk corresponded with text below which explained that the discount excluded certain lines. Boohoo believed that the qualification made it clear to the consumer that the excluded products were items that were typically excluded from all promotions they offered. Boohoo stated that the product lines that were excluded from the discount comprised less than 4% of their products.
Boohoo acknowledged that the use of a countdown clock was a mistaken use of the format. Following an internal review, they stated they would not use countdown clocks in ads unless the offer varied on their expiry.
Both complaints were upheld.
The ASA considered consumers would understand the claim “up to 60% off everything” to mean that all products on the Boohoo site were included in the promotion, whereby all products would be discounted, with a significant proportion of products being sold with a 60% discount.
The ASA considered that the presence of an asterisk after the claim and the corresponding text below which stated “Excluding sale and applicable to selected lines only” was not sufficient to counter the overriding impression of the ad that all products would be discounted. Because consumers were likely to interpret the claim “up to 60% off everything” as applying to all Boohoo products when in fact 4% of lines were excluded, the ASA concluded that the ad was misleading.
The ASA understood that once the countdown clock reached zero, it reset to repeat the same free next day delivery offer with a new countdown clock counting down to zero, and this re-occurred at every hour throughout the day. Likewise, the “up to 75% offer” also reset at the end of each hour with the same offer alongside a claim that the promotion finishes at the end of the hour. The ASA considered that consumers were likely to regard the offer as a time limited promotion and expect it to expire at the end of the countdown clock. The countdown clock was therefore likely to pressurise consumers into making swift transactional decisions, including purchasing the product, without giving their purchase the due consideration they normally would because of the misleading implication in the ad that the offer would run out at the end of the time period. The ASA concluded that the ad was misleading because consumers would expect the offer of free next day delivery to end and the 75% discount price to revert to the usual price after the countdown clock ended, when in actual fact it reset at the end of each hour. This meant that the promotions were not actually time limited.
Why is this important?
Retailers should take care not to mislead consumers by implying all products are included in an offer if this is not the case. A “selected lines only” disclaimer won’t help you. Retailers should also not use marketing techniques to pressure consumers into making swift transactional decisions, including purchasing a product, as a result of artificial time restraints.
Any practical tips?
A disclaimer can’t qualify a headline claim, so beware stating that an offer applies to all products when there are in fact exclusions – and don’t think a “selected lines” only disclaimer will help you in these situations.
Time limited offers which pressurise consumers into making hastier choices than normal are almost always going to be open to scrutiny, so only use them if you can be sure that the offer will end when the clock runs out.