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October 30, 2013

ASA Dispatch Sainsbury's Brand Match

Seller Beware: Consumer Protection Insights for Industry

Last year UK supermarket chain Sainsbury's was rapped on the knuckles twice by the UK's Advertising Standards Authority (the ASA) for misleading statements and comparisons with rival supermarkets in advertising for its "Brand Match" campaign. Sainsbury's has now been dealt another blow on the same campaign.

The latest TV ad showed various people shopping at Sainsbury's, Tesco and Asda. A voice-over said "Deals. Everywhere aren't they? But wouldn't it be nice if we didn't have to go everywhere to get them? That's why Sainsbury's Brand Match matches comparable branded deals at Tesco and Asda. So spend £20 or more and we'll tot up the prices of brands in your basket and if you could have paid less at Tesco or Asda, even because of a deal, we'll give you a coupon for the difference."

Two viewers complained that the ad was misleading as they understood that the promotion compared the total cost of a branded shop (i.e. all branded items bought in one go) and that any coupon for the difference would be reduced if any branded products on offer at Sainsbury's were cheaper than at Asda or Tesco, which meant that customers would still need to shop around for the best deal. Sainsbury's disputed this and claimed that the voice-over and on-screen text made it clear that the comparison was of the total price of the branded shop.

Assessing the ad, the ASA considered that the overall message was that customers would not have to shop around to get the benefit of deals across the three supermarkets. Claims such as "those deals you love, just now in one place" and "wouldn't it be nice if we didn't have to go everywhere to get them?" reinforced the message.

They went on to highlight some of the technicalities of the promotion. Although the comparison and voucher were based on the total cost of all branded goods in the customer's basket, the value of the voucher could be reduced if any individual items were cheaper at Sainsbury's. This allows for situations where, despite the overall cost of a branded shop being cheaper at Tesco or Asda, the resulting voucher for the difference could be reduced, even to zero, by just one item being cheaper at Sainsbury's.

The ASA concluded that the ad was misleading as the fact that a customer would, in some situations, still have to shop around in order to get the cheapest prices, was not made clear and indeed contradicted the overall message of the ad.

As Sainsbury's clash with the ASA for the third time over the Brand Match campaign, this ruling highlights the need to take account of implied claims in addition to those expressly stated. The customer's impression of an ad is just as important when it comes to meeting the requirements of the UK Code of Broadcast Advertising.

© Arnold & Porter Kaye Scholer LLP 2013 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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