Amazon Prime's "one day delivery" service misleading

Will a 'One-Day Delivery' claim be misleading if not all products under the relevant service are delivered the next day?

The background

Following receipt of 280 complaints from disgruntled Amazon customers, the ASA has reprimanded Amazon, ruling that claims relating to its "One-Day Delivery" service, when presented as a benefit to taking up Amazon Prime membership, are misleading.  The ASA told the e-commerce giant that going forward it will need to make clear to its customers that some 'Prime' labelled products are not available for next day delivery.

The ruling related to various claims on Amazon's website regarding its "One-Day Delivery" service seen in December 2017.  In particular, Amazon's home page featured the claims "One-Day Delivery for Christmas" and "get unlimited One-Day Delivery with Amazon Prime", with the latter accompanied by a link to the 30 day free Amazon Prime trial.  A webpage providing information on the Amazon Prime service also included the claim: "Unlimited One-Day Delivery on millions of eligible items at no extra cost.  Depending on the time of day that you place your order and your delivery address, if in stock it’ll be dispatched that same day and delivered the next day."  The ASA also noted other claims related to the "One-Day Delivery" service on various Amazon webpages, often accompanied by text and links prompting customers to take up a free 30-day Amazon Prime trial. 

Amazon explained that the One-Day Delivery service at no charge was one of a number of benefits offered to Prime members, ie Prime members were able to select the One-Day Delivery option for free, whereas normal customers would have to pay a flat fee per order if they wanted this service.  Amazon stated that they thought customers were likely to understand that:

• the option was only available on a selection of items and that the various ads did not promise a particular speed of delivery of a particular product; and
• individual forecast delivery dates were displayed for each product and that customers would need to check the individual items to find out whether One-Day Delivery was available and what the delivery date to their selected address would be at the particular time that they placed an order.

Amazon did not believe that the speed of a future order could form part of a customer's decision about whether or not to sign up to the Prime service.  They also said that they did not think that a customer's later disappointment about the speed of a One-Day Delivery order should render their marketing misleading. 

Amazon provided the ASA with various information and data relating to forecasted delivery dates communicated to customers as well as the figures for their on-time deliveries during 2017.  They stated that customers were provided with a forecast delivery date throughout the customer journey (including in the search listings, product listing page and confirmation emails).  Amazon supplied the percentage of orders with a forecast delivery date of 1 day after the order was placed.  The data supplied covered orders placed at various times of the day, from before 2pm to before 8pm.  The figures showed that the later in the day that an order was placed, the less likely it would be that the forecast delivery date displayed to the customer would be the next day.  Amazon stated that their "About One Day Delivery" webpage made clear to customers that the time of day that the order is placed affects whether or not dispatch will occur the same day (which in turn would impact on whether the delivery occurred the next day). 

Amazon explained that for a delivery to be recorded as 'on time' it would need to have been received by the customer one day after it was dispatched.  This was confirmed in the UK Help page of their website (two clicks away from the Home page).  The dispatch date would also depend on a number of factors, including item type, storage location and delivery location.  Additionally, Amazon said that there could be a number of reasons for late deliveries and that these were often outside of their control (eg bad weather, carrier failure and human error).  They supplied data which demonstrated that weeks with lower on-time deliveries coincided with snow and ice in the UK. 

The decision

The ASA upheld the complaints against Amazon. 

In reaching its decision, the ASA confirmed that the term "One-Day Delivery" in the context of the various claims on Amazon's website would be understood by consumers that all Prime labelled items would be available for delivery by the end of the day after the order was placed, provided that the customer did not (1) order too late in the day; or (2) order for a Sunday delivery. 

The ASA accepted that the inclusion of forecast delivery dates for specific items (often in the search listings and throughout the customer journey) meant that customers were unlikely to be misled when purchasing a specific item.  However, the ASA found that the presentation of the One-Day Delivery claim as a benefit of Amazon Prime membership elsewhere on the website was likely to cause consumers to make a transactional decision in relation to taking up a Prime membership. 

The ASA reviewed the evidence and data provided by Amazon and considered that there was a small, but significant, proportion of Prime orders which were not forecast for delivery the subsequent day (including in circumstances where orders were placed before 2pm).  This meant that there were a significant proportion of Prime labelled items which were not available for delivery the next day after placing an order.  The ASA therefore concluded that the claim for One-Day Delivery could not be supported and was misleading given the proportion of Prime labelled items which were not in fact available for delivery the next day.     

The ASA also noted the information provided on the various Amazon webpages.  They said that the reference to being delivered one day after dispatch was unlikely to be of use to consumers because it did not tell them how soon after placing their order they would receive the product.  They also commented that in any event many consumers would not actually visit those webpages before making a decision on whether or not to purchase an Amazon Prime subscription.

Why is this important?

It's easy to see why e-commerce businesses would want to present a speedy delivery service as part of their offering to help them to remain competitive.  However, retailers should take care to ensure that they can fully support any claims that they make in their advertising, particularly when the claims are presented absolutely.  That's not to say that all deliveries would need to be on time to avoid the claim being considered misleading, but retailers will need to have sufficient data to demonstrate that a significant proportion of deliveries are within the advertised timeframe.  A complaint against Royal Mail Group in March 2018 relating to their Two Day Delivery "Express48" service was not upheld by the ASA because Royal Mail was able to supply data which showed that the service had a success rate of 97-24-98.37%.  

The decision also makes clear that delivery timescales are a feature capable of influencing a transactional decision by consumers.  In this instance, the ASA confirmed that the claim was likely to cause consumers to make a transactional decision in relation to whether or not to purchase Amazon Prime.  Whilst not expressly stated in the adjudication, this language would suggest that an unsupportable delivery claim could also amount to a breach of the Consumer Protection from Unfair Trading Regulations 2008 in addition to the CAP Code.

Any practical tips?

Take care when making claims about delivery dates, particularly where these are presented in your advertising as an incentive to customers to encourage them to purchase from you.  If you do want to include claims about delivery timescales you will need to ensure you hold robust data to support them!   Do not assume that you can rely on clarifications or qualifications later in the customer journey, even if they are very clearly presented before a customer actually makes a purchase.  In the Amazon decision it is worth noting that the inclusion of the forecast delivery dates which were communicated throughout the customer journey when purchasing specific items was insufficient to prevent the claims from being considered misleading elsewhere (eg on the Amazon home page).