Businesses: what do you mean you’re not perfect?

Occasionally the ASA gives the impression of acting more as a consumer protection body rather than 'just' a regulator of advertising.  The CAP Code says that it is to be observed in spirit as well as to the letter, so it is perhaps not surprising that sometimes it feels as if its adjudications have more to do with keeping consumers happy, than considering whether the advertising was fair when it was published.

However, operational difficulties can get in the way of what an organisation has promised its customers in its advertising.  In those circumstances it may seem rather harsh to uphold complaints about the advertising, particularly if the organisation concerned was telling the truth when the advertising was published and especially when the organisation concerned has tried to make it up to its disappointed customers.

Such an adjudication caught my eye recently—it related to a Valentine’s Day offer of roses promoted by (MSE) but fulfilled by a company called Arena.

The customer challenged whether the promotion had been administered fairly.  She argued that on the day of delivery, MSE informed consumers that the suppliers would not be able to deliver all the orders. 

MSE stated that the delivery problems were not foreseeable by them or, to the best of their knowledge, by Arena, and had not just affected MSE users, which were a tiny percentage of Arena's total Valentine's Day customers. They stated that the delivery issue did not affect the ‘fairness’ of the deal that MSE had publicised. Instead, they believed that Arena had dealt very fairly with the affected customers: Arena had offered to send custoners a bouquet of 24 roses the next day at no extra cost, as well as ensuring refunds were given to all customers who requested them. Some customers received both a full refund and a bouquet of 24 roses.

Arena stated that over Valentine's week they were unable to deliver a small minority of their Valentine's bouquets, due to operational logistics which they could not foresee. They had planned their operations carefully and had no reason to believe that any problems would arise.  They also said that once they knew there were problems they communicated with their customers proactively.

Arena explained that a number of consumers actually received 24 roses, a full refund and a 50% off discount code, and so although they acknowledged the incident was highly regrettable, they believed those affected received a very generous settlement.

Despite the fact the problems were beyond Arena’s control, the ASA upheld the complaint.  It accepted that Arena had made a reasonable estimate of demand and the resources required to meet that demand.  However, because Arena did not deliver the orders on time, and were also late with some of the redeliveries, the ASA did not believe that the promotion had been fairly administered.

Advertisers should note that they may have to alter their advertising to make it clear that operational issues may prevent a particular service being provided even if such issues are, or could be, a one-off.

It is also of note that the consumers complained to the ASA rather than trading standards.  Is this because they believe that the ASA will deal with their complaint more expeditiously?  Did they complain to the organisations themselves before going to the ASA?

This adjudication shows that advertisers should review their operations carefully and if there is a chance that they may not be able to offer a particular service, they should include appropriate prominent disclaimers. Offering compensation will not be sufficient to prevent a complaint being upheld.

What do you think? Do let us know...

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