The Advertising Standards Authority (ASA) has upheld a complaint
made against Origin Sleep UK ltd t/a Origin Mattress which covered
three issues. The complainant (Emma Matratzen GmbH, part of the
Emma Sleep group – more on the significance of this later)
challenged whether, in relation to a webpage seen in August
2024:
- the use of the countdown clock misleadingly implied that the
sales promotion was time-limited, because the same promotion was
still available under a new name shortly after the countdown ended;
and - reference prices and associated savings claims made for the
“Mega Summer Sale” were misleading and could not be
substantiated.
The third issue raised was if efficacy claims related to the
orthopaedic and health properties of Origin Mattress’ products
were misleading and could be substantiated, which we will not focus
on in this article (save to say that the ASA also upheld this
complaint on the basis that they did not receive evidence from
Origin Mattress to substantiate any of the claims made).
What did the website say?
The website included a banner at the top that included text
which stated, “Mega Summer Sale up to 45% off […] ending
in […]” followed by a countdown clock showing the days,
hours, minutes and seconds left of the sale.
In addition, a webpage titled “SALE”, included links
to the “Origin Hybrid Mattress” and the “Origin
Hybrid Pro Mattress”. Text under the “Origin Hybrid
Mattress” listing stated, “Up to 40% off“,
under which the original price of £465 was shown with a line
crossed through, followed by the sale price of £279.00. Text
at the bottom of the listing for the “Origin Hybrid Pro
Mattress” stated, “Up to 45% off – ENDS
SOON“, under which the original price of £961.00
was shown with a line crossed through, followed by the sale price
of £529.
What did Origin Mattress say?
…nothing. Origin Mattress didn’t respond to the ASA’s
queries. The ASA mentioned in their ruling that it was concerned by
the lack of response and apparent disregard for the CAP Code
– a reminder to all that staying silent is not necessarily a
good defence!
What did the ASA say?
Use of the countdown clock
The ASA considered consumers would understand that the promotion
was ending soon, and once the countdown clock reached zero, the
products included in the sale would return to their usual selling
price, and that the use of the phrase “Mega Summer Sale”
reinforced the impression that the promotion was time-limited.
However, the day after the “Mega Summer Sale” ended, the
website displayed a new sale with a different name, offering the
same discounts. In addition, 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 that the sale would finish at
the end of the time period displayed by the countdown clock.
As a result, the ASA concluded that the claims were
misleading.
Reference pricing and savings claims
The ASA considered that:
- consumers would understand from the struck through prices that
the sale prices for both mattresses represented a reduction against
the price at which they were usually sold at the time the ad
appeared; and - consumers would understand from the claims “Up to 45%
off” and “Up to 40% off” that they would be able to
achieve a genuine saving of up to 45% and 40% against the usual
selling price of the mattress, which was further reinforced by the
presence of the countdown clock (as discussed above).
Because the ASA didn’t receive any pricing history for the
products from Origin Mattress, it wasn’t able to see if the
referenced higher prices were the usual selling prices. However,
Emma Matratzen GmbH shared screenshots of product listings which
showed that between 17 November 2023 and 31 January 2024 the Hybrid
Pro mattress had been consistently advertised as being on sale,
with the same reference and sale prices of £961 reduced to
£529. During that timeframe, the Hybrid mattress had also
consistently been advertised at a reduced rate, with a reference
price of £499 and a sale price of £299. Throughout that
timeframe, both mattresses were advertised as being available at a
45% and 40% discount as part of a series of concurrent sales
(“Black Friday”, “New Year Sale”, Mid-Winter
Sale”, Sleep Better Sale”).
Because the ASA had not seen evidence that the savings claims
represented a genuine saving against the usual selling prices of
the products, it concluded that the savings claims were
misleading.
Wider context
As we have reported on previously (see here and here), the Competition and Markets Authority
(CMA) has, over the last couple of years, been investigating
pricing practices deployed by online mattress retailers and, as a
result of that investigation, has issued specific guidance in
relation to the sector (although it has indicated that it intends
to take the same approach with other retailers) which can be found
here.
The CMA’s investigation resulted in Simba Sleep signing
undertakings to promise it will change its practices. However, the
Emma Group (which includes the complainant of this ASA complaint,
amongst others) has refused to settle with the CMA, and so the CMA
is now seeking a prosecution through the courts (see here for further information).
In its guidance, the CMA has stated that whether a price
comparison is genuine depends on both of the following
principles:
- The duration of an offer: the ‘was’
price must be offered for a sufficient period of time under the
same circumstances (in this case all online selling channels),
immediately before the discount begins. The duration of the
‘was’ price offer cannot be shorter than that of the
discounted offer price (the ‘duration requirement’
principle). - The volume of an offer: a sufficient number of
sales should have been made at that ‘was’ price. At least 1
product should have been sold at the ‘was’ price for every
2 products sold at the discounted price (the ‘volume
requirement’ principle).
The duration requirement principle is already well established,
but the standard the CMA has set for the volume requirement
principle is new and is likely to be quite difficult to comply with
for a lot of retailers.
Of course, the ASA and CMA are separate and independent
regulators, but it is quite interesting that the ASA didn’t
touch on this principle in its assessment of Origin Mattress’
reference pricing claims. One could speculate that part of the
reason for Emma Matratzen GmbH making the complaint might have been
to see how the ASA addressed this principle (as a litmus test to
see how the courts might address it) but, alas, the ASA decided
instead to simply ignore it and is perhaps awaiting the outcome of
the Emma/CMA court case. Also, when our colleague Brinsley held his
recent fireside chat with Guy Parker from the ASA,
they discussed this issue and Guy mentioned that the pricing
experts from various regulators and trading standards would be
meeting soon and the CMA guidance would be on the agenda. So watch
this space.
We will be keeping a keen eye on the progress of that case as it
makes it way through the courts to see what the outcome is. In the
meantime, retailers should use this upheld complaint as a reminder
to ensure their pricing practices fall on the right side of the
guidance before it’s too late.
” The ad must not appear again in its current form.
We told Origin Sleep UK Ltd to ensure their ads did not mislead as
to the closing date/time of promotions, or imply that discount
offers were time-limited or would not be repeated if that was not
the case. We also told them to ensure that future savings claims
did not mislead, and to ensure they substantiated savings claims
against the usual selling price of their products.
“
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