Advertising watchdog upholds two complaints against online retailer THG

Two complaints against Manchester-based online retailer, THG, have been upheld by advertising watchdog, the Advertising Standards Authority (ASA).

The first was seen on November 22, 2022, when the website for MyProtein, a sports nutrition retailer, featured a banner with text “BLACK FRIDAY UP TO 80% OFF EVERYTHING USE CODE: BLACK”.

The complainant, who was unable to identify any products on the website that had a saving of more than five per cent, challenged whether the claim “Up to 80% off everything” was misleading and could be substantiated.

THG Nutrition, trading as MyProtein, said that all products on their website were included in the promotion. They said 12% of all non-clothing products and 12% clothing products had a discount of at least 80%. They also said that 85% of non-clothing products and 63% of clothing products had a discount of between 40% and 80%. They provided a spreadsheet of their data that listed all products from their website at the time of the promotion and showed the discount applied against the product’s RRP.

They said they could not account for why the largest discount the complainant identified was only five per cent. However, it was possible that the discount code had not applied correctly at the checkout.

The ASA upheld the complaint and considered that consumers would understand the claim “UP TO 80% OFF EVERYTHING” to mean that they would be able to make a genuine saving against the usual selling price of products in the Black Friday sale.

It said: “We noted that the ad stated that the discount was “OFF EVERYTHING”, and therefore consumers would expect that the sale included all products sold by the advertiser. We considered that they would expect a significant proportion of products to be discounted by the full 80%, against the price at which they were usually sold by MyProtein.

“We noted from the data that had been provided, that the claimed savings appeared to be based on the RRP of the products. However, we expected to see evidence of the pricing history of the products as sold by MyProtein. Because we did not receive that, we were unable to determine the usual selling price of the products, or whether a significant proportion of them had been reduced by 80% against that price.”

The ASA said the savings claim had not been substantiated and was, therefore, misleading, breaching CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 3.17 (Prices).

It said the ad must not appear again in its current form, and told THG Nutrition to ensure it had sufficient evidence for its claims.

Following this, on December 7, 2022, on the same website, the home page featured a banner with text “BUY MORE, SAVE MORE 45% OFF £65, 40% OFF £30, 35% NO MIN SPEND” alongside images of Protein Pancake Mix, Impact Whey Protein and a Layered Protein Gingerbread bar.

It also featured a product webpage for “Hotel Chocolat Layered Protein Bar” featuring the same banner. Further down the page, next to the payment option for the product, the same text appeared, alongside which further text stated, “Discount auto applies at basket”.

The complainant, who understood that the promotion did not apply to some products, including the Hotel Chocolat layered protein bar, challenged whether the ads were misleading.

THG Nutrition said their internal advertising safeguards had ensured the ad was proactively reviewed shortly after it was published, and that they had amended it soon after publication. They said they recognised that the ad had not made it sufficiently clear to consumers that the promotion only applied to selected products. They said the banner that featured on the webpage for the Hotel Chocolat layered protein bar was also removed at the same time.

Upholding the complaint, the ASA considered that consumers would understand the home page featuring banner ad (a) “BUY MORE, SAVE MORE 45% OFF £65, 40% OFF £30, 35% NO MIN SPEND” to mean that if they spent £65 or over they would save 45%; if they spent between £30 and £64.99 they would save 40%; and if they spent up to £29.99 they would save 35%, and that the relevant discount would be applied to their total spend. ASA considered that, in the absence of any qualifying information, consumers would expect the promotional discount to apply to all products across the website as a whole.

However, it understood that not all products on the website were included in the promotion. It considered that the exclusion of some products was material information concerning the promotion, and the omission of that information was likely to mislead consumers.

ASA said: “We noted that the claim had been included in two places on ad (b), the product webpage. We considered that the use of the claim on that page would be understood by consumers to mean that the product listed was explicitly included in the promotion.

“We also noted the use of the text ‘Discount auto applies at basket’ along with the promotional claim and considered that this text reinforced the impression that the Hotel Chocolat layered protein bar was included in the promotion. However, we understood that the product was in fact not included in the promotion. For those reasons, we considered the use of the claim in ad (b) was misleading. We, therefore, concluded that both ads breached the Code.”

ASA ordered that the ads must not appear again in the form complained of. It told THG Nutrition to ensure all significant information relating to promotions was displayed prominently and not to imply particular products were included in the promotion if that was not the case.