Lidl UK GmbH 19 Worple Road Wimbledon London SW19 4JS Number of complaints: 1

Date: 1 October 2008 Media: Catalogue Sector: Retail

Ad
A brochure, for stationery from Lidl, was headlined "This week's top offers!".  The brochure included offers for gel pens, colouring pencils and correction pens. Text stated "Gel Pens - Pack of 10 ... 1.49 Per Pack  75% CHEAPER compared to Ryman ..."; small print underneath stated "Similar item - J Roller RX, £5.99, purchased at Ryman in Wimbledon 21st November 2007". Body text continued "Colouring Pencils  Choose from packs of 10, 12 or 24 colouring pencils ... 1.29 Per Pack  35% CHEAPER compared to RYMAN"; small print underneath stated "Similar item - West Colouring Pencils x 12, £1.99, purchased at Ryman in Wimbledon 11th December 2007 ...". Body text continued "Correction Pens or Rollers Pack of 2 1.49 Per Pack 62% CHEAPER compared to Ryman ..."; small print underneath stated "Similar item - Tipp Ex Mini Pocket Mouse (31.99 x 2) £3.98 ...".

Issue
Ryman Group Ltd (Ryman) challenged whether:

1. the gel pen price comparison was misleading, because it compared own-brand products with branded products;

2. the colouring pencil price comparison was misleading for the same reason;

3. the correction pen price comparison was misleading, because the price comparison was not made on correction pens; and

4. the correction pen and roller price comparison was misleading, because it compared the cost of a two-pack of correction rollers from Lidl with the cost of two single items from Ryman.

The CAP Code:

3.1;7.1;18.1;18.3

Response
1. & 2. Lidl UK GmbH (Lidl) said they took great care when making price comparisons to ensure they were compliant with the CAP Code. They said they had a wide range of own-brand products so it was not always possible to compare like-for-like; they believed they could be unfairly restrained from making valid comparisons if a like-for-like comparison was not possible but the products were of similar quality.

Lidl argued that the ad made clear that the comparisons were with similar, not identical, products and made clear when and where they were purchased. They sent a copy of the receipts from the Wimbledon Ryman store, which showed that a pack of 10 J Roller RX pens had cost £5.99 and a pack of 12 West Colouring Pencils had cost £1.99; Lidl pointed out that that made their products 75% and 35% cheaper respectively.  

Lidl argued that both products were of similar function and quality. They asserted that the gel pens had a similar spread of colours; the size of the rollerball was identical; the writing performance of their pens was smoother and more comfortable and the ink fill in the Lidl pens was greater than that of the J Roller RX pens. They said the packs of colouring pencils had a similar spread of colours; the length of the pencils was the same; the width of the Lidl pencils and leads was slightly greater and both were made from planted wood.

Lidl argued that the issue of brand was incidental and that customers were unlikely to see brand as a significant feature when comparing two products. They said they did not sell branded gel pens or colouring pencils, and believed Ryman did not sell own-brand versions of those products, so they had made what they believed was a valid comparison of the products available.

3. & 4. Lidl said they accepted that the comparison was intended as a like-for-like comparison on the basis of brand to brand. They argued that the ad made clear that similar, not identical, products were being compared and where and when they were purchased; they believed it also made clear the number of items that were purchased.

Lidl said it was not possible for them to compare two twin packs because Ryman only sold the Tipp Ex Mini Pocket Mouse individually. They said they had therefore purchased two individually and made that clear in the ad; they sent a copy of the receipt to confirm that.

Assessment
The ASA understood from Ryman that they had stocked a five-pack of own-brand Partners label gel pens and a 12-pack of own-brand Partners label colouring pencils in all Partners and Stationery Box stores when Lidl made their price comparisons. They explained that, following a takeover, they were re-branding all Partners and Stationery Box stores to Ryman stores and that six of those Partners and Stationery Box stores were trading under the Ryman fascia at the time of the comparison and could still include both Ryman and Partners own-brand products.

1. & 2. Not upheld
We noted Ryman had sold own-brand Partners products in all Partners and Stationery Box stores. We considered, however, that readers would expect the claims to refer to products on sale in Ryman stores and not those available in other branded stores, even if those stores were owned by the Ryman Group. We noted the products had been available in six stores re-branded to Ryman, but considered that because they were old Partners, rather than Ryman, own-brand products, and because their availability had been restricted to a limited number of newly branded Ryman stores, we would not expect Lidl to include them in their comparison.  

We noted Lidl had compared packs of the same size in both cases and we understood that the products were of the same or very similar quality. We also noted the small print in the ad made clear the basis of the claim and that they were similar products. We noted Lidl did not sell branded versions of the products and that Ryman did not sell an own-brand version. The CAP Help Note on Retailers Price Comparisons stated that "Marketers should, as far as is reasonably possible, compare products of the same, or very similar, quality (for example own-brand with own-brand, brand with brand and premium with premium)". We considered that, in the absence of an own-brand to own-brand or brand to brand comparison, Lidl had made a comparison with the most similar products available and had made clear in the small print the basis of that comparison. We concluded that the comparisons were unlikely to mislead.

On points 1 and 2, we investigated the ad under CAP Code clauses 7.1 (Truthfulness) and 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products) but did not find it in breach.

3. & 4. Upheld   
We noted Lidl had compared the price of a pack of two Pritt correction pens or rollers with the price of two individually sold Tipp Ex correction mice sold by Ryman. We considered that, while the comparison of the Pritt correction roller with the correction mouse might have been acceptable, the comparison of the correction pen with the correction mouse compared two products whose function differed significantly and did not meet the same needs; the correction pen produced correction fluid, the roller produced a strip of correction tape. We considered that the comparison of the correction pen with the correction roller was therefore misleading.   

We also noted the CAP Help Note on Retailers Price Comparisons made clear that ... marketers should not compare prices of multipacks of their products with competitors single-product prices multiplied by the relevant number". We considered therefore that, because Lidl had compared a pack of two with the price of two individual items, the comparison was misleading.

On points 3 and 4, the ad breached CAP Code clauses 7.1 (Truthfulness) and 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products).

Action
The ad must not appear again in its current form. We told Lidl to ensure they compared products of the same or similar function and not to compare prices of multipacks with competitors single-product prices multiplied by the relevant number.

Adjudication of the ASA Council (Non-broadcast)