Emma, the mattress company, featured a number of claims on its UK website and in a poster that appeared on the London Underground.

Ad (a): A product page on the website, seen on 27 September 2021, advertised an Emma Premium Mattress UK King Size for £637.45. Text above the selling price stated “45% savings” and “From £1,159.00”. The price “£1,159.00” had been crossed out, with a line through it.

Ad (b): A further product page, seen on 12 November 2021, advertised an Emma Luxe Mattress UK Double for £1,039.35. Text above the selling price stated “39% savings” and “From: £1,728.00”. The price “£1,728.00” had been crossed out, with a line through it.

Ad (c): The website homepage, seen 18 October 2021, stated “FLASH SALE UP TO 50% OFF”, accompanied by a countdown clock.

Ad (d): The London Underground poster, seen on 10 November 2021, featured text which stated “EMMA’S BIGGEST EVER SALE BLACK FRIDAY UP TO 50% OFF”.

Complaints

The ASA received complaints from a competitor and two individuals:

1. Eve Sleep Plc and two members of the public challenged whether the savings claim was misleading, because they believed the “From” price in ad (a) had been increased.

2. A member of the public, who understood the product in ad (b) was a new release, challenged whether the ad complied with the Code.

3. Eve Sleep challenged whether the use of the countdown clock in ad (c) misleadingly implied that the sales promotion was time limited, because they understood that the same discount offer would restart shortly after the countdown ended.

4. Eve Sleep challenged whether the claim “BLACK FRIDAY UP TO 50% OFF” in ad (d) was misleading.

Response

1. Emma Matratzen GmbH t/a Emma provided a detailed pricing history for the product covering a seven-month period from when the product launched,  including the period for which the promotion referenced in ad (a) ran. 

That pricing history showed:

• the "reference price" for the product (i.e. the price referred to as the “From” price in the ad), 
• whether the product was on promotion, and 
• when on promotion, the percentage discount that had been applied to the reference price during that period.

The promotions were divided up into those that applied to either new customers or all customers. Emma said their pricing history demonstrated that the savings claim represented a genuine saving against the usual selling price of the product.

They told the ASA they had tried to ensure the advertised product had not been included in promotional offers unduly frequently. 

During the seven-month period for which they provided the pricing history, for 52% of that time the product had either:

• not been on promotion, or 
• only been on promotion to a limited group of consumers.

The reference price had fluctuated over the seven-month period, ranging from £1,059 to £1,229. They said the reference price changed throughout this period because their supplier had increased their prices due to an increase in their own production costs. 

Emma said it was no longer feasible for them to continue selling the product at the previous reference price and therefore increased it to £1,159 on 21 September 2021.

Emma said that over the seven-month period they had sold 15,392 units; 2,634 of those had been sold at the reference price applicable at the time.

2. In relation to ad (b), Emma said the ad referred to “pre-sale". They considered this would indicate to consumers that the product was new to the market. However, they accepted that the ad should have been clearer in explaining that it was an introductory offer. They said the ad, unfortunately, went live without the content making clear that it was an introductory offer. They said they had removed the product and ad from the website.

3. They said the “Flash Sale”, which offered a discount of up to 50% off for all customers, ended at midnight on 18 October 2021. The sale which immediately followed on 19 October 2021 did not offer a discount of up to 50% off, and was only available to new customers.

4. They said the Black Friday sale ran from 15 to 29 November 2021. In their opinion, the presentation of the ad was not misleading because it prominently stated that it was a Black Friday sale. It did not state that the sale had already started. They considered that the average consumer would understand from the ad that Emma would be running a promotion for the Black Friday weekend, and not that the sale was taking place at the time the ad was seen. However, they said they would ensure that their future ads referenced the start date of a sale.

Did the ASA get out of bed on the wrong side?

The ASA upheld all limbs of the complaint. But it does seem justified in doing so.

In relation to ad (a): 

The ASA considered that consumers would understand the crossed out “From” price of £1,159 (the reference price) as being a “was” price, i.e. the usual selling price that the King size Premium Emma mattress was sold at, and would expect the lower price to represent a genuine saving against that price.

The ASA said the pricing history showed that the reference price of the King Premium Mattress had fluctuated throughout the seven-month period. The reference price of the mattress was initially £1,099 for 41 days, at £1,299 for a further 21 days and at £1,059 for 132 days, before changing to £1,159 on 21 September 2021.

However, the ASA noted that the item had been on promotion (to either all or new customers) since the reference price had increased to £1,159.  And, for 49 consecutive days immediately prior to the reference price being raised to £1,159, the mattress had been on promotion to either new or all customers. The ASA said it was not satisfied, based on the substantiation provided, that the reference price of £1,159 stated in the ad was the usual selling price of the product.

The ASA also considered Emma’s pricing practices as a whole for the seven-month period. The ASA noted that throughout the period (224 days in total), the item had only been priced at the reference price for all customers on 68 days in total. Also, over that period, only 17% of those units had been sold at the reference price. 

As the product had not been priced at the reference price for significantly longer than it had been on promotion, and only 17% of units had been sold at the reference price, the ASA considered that Emma had not demonstrated that their reference prices were the usual selling prices of the product. Therefore, the ASA concluded the savings claim was misleading.

UPHELD: The ASA held that ad (a) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 3.17 (Prices).

In relation to ad (b):

The ASA considered consumers would understand the price of the Double Luxe Mattress was reduced by 39% to £1,039.35. The “From” price of £1,728, which was crossed out, indicated that the higher price was a previous price, i.e. the usual selling price of the mattress.

Emma intended this to be an introductory offer, which would have been permissible if it had been properly communicated - but this was not properly communicated.  The reference to “Pre-sale” was not stated on the product page, and even if it had, it was not clear that this meant it was an introductory offer.

The presentation of the price was therefore misleading.

UPHELD: The ASA held that ad (b) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 3.17 (Prices).

In relation to ad (c):

The ASA considered that the claims “FLASH SALE” and “UP TO 50% OFF”, alongside a countdown clock, would be understood to mean that Emma were offering up to 50% off their products for a short period of time, and that once the countdown clock reached zero the same products would return to their usual price. 

However, immediately after the “FLASH SALE” ended a sale for new customers started.

The ASA considered that the countdown clock was likely to pressurise consumers into making a swift transactional decision, including purchasing products, 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 therefore concluded that the ad was misleading.

UPHELD: The ASA found that ad (c) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 8.17.4.e (Promotional marketing).

4. In relation to ad (d):

The ASA considered consumers would understand from the ad that Emma were running a promotion during the Black Friday period where they could save up to 50% on products. The ASA understood that whilst Black Friday referred to a specific day in the year, many retailers ran "Black Friday" promotions which lasted for several days or weeks around that time.

The ASA therefore considered that it was not unreasonable for a consumer to think the promotion would be running at the time the ad was seen, even if this was before Black Friday. 

In this case the ad was seen on 10 November 2021, but Emma’s Black Friday promotion lasted from 15 to 29 November. The ASA therefore considered that the start and end date of the promotion was significant information which should have been included in the ad - so it was misleading to omit that information.

UPHELD: The ASA concluded that ad (d) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) 8.17  8.17.3  8.17.4.a d 8.17.4.a (Significant conditions for promotions).

Action - you've made your bed, now lie in it

The ASA told Emma to ensure their future savings claims did not mislead and to ensure they substantiated savings claims against the usual selling price of their products. 

They told Emma to ensure:

• their introductory offers made clear that the lower price was an introductory price and not a discount against the usual selling price;
• their ads did not misleadingly imply that discount offers were time-limited, for example by using a countdown clock, if that was not the case; and 
• that significant information about offers, such as the start and end date, must be made clear in ads. 

Don't fall asleep at the wheel

This ruling doesn't tell us anything new, but, when it comes to the presentation of discounts and offers, it covers a range of useful scenarios.

It shows that the ASA will respond to complaints about misleading pricing practices, and that the onus is on the advertiser to prove that their claims are true. 

It also reminds brands that this also applies to claims made on their website, not just in paid advertising space.

So, if you're an advertiser or brand offering regular discounts, don't get caught napping.

Geraint Lloyd-Taylor is a partner in, and deputy head of, our leading Advertising & Marketing Law team. Read more about his work and how to get in touch with him, here.