The Committee of Advertising Practice (CAP) has published an enforcement notice on advertised delivery restrictions and surcharges, alongside additional guidance on delivery charges.
CAP's enforcement notice
With the ever increasing popularity of online shopping, CAP and the Advertising Standards Authority (ASA) have seen an increasing number of complaints about misleading statements in respect of delivery claims for online products.
CAP's enforcement notice is a warning to marketers that statements falling foul of the rules summarised below will face the consequences. The notice states that if CAP continues to see problems in this area after 31 May 2018, they will "take targeted enforcement action to ensure a level-playing-field" – giving the ASA a licence to carry out targeted enforcement against those who do not comply.
Advertised Delivery Restrictions and Surcharges
The key takeaways from the enforcement notice are:
- Do not make inaccurate 'absolute delivery claims'; and
- Any qualifications about delivery should not contradict the headline claim.
The first rule means that if you make an absolute delivery claim, such as "UK delivery" or "Free UK delivery" then such a claim has to be accurate and not misleading. For example, if delivery to the far north of Scotland or Northern Ireland is not possible or is not free (as suggested by the claim), then such exclusions need to be made clear from the outset, as part of the main claim.
The second rule states that if there are restrictions on the availability of delivery, it is best not to make an absolute claim in the first place, as any restrictions could appear to contradict the main claim. For example, making the claim "Free UK delivery", whilst elsewhere on the website stating that delivery to certain locations requires a surcharge fee, would clearly contradict the headline claim.
CAP's guidance on delivery charges sets out a number of additional rules about how online marketers should be advertising the costs of delivering their products. The guidance recognises that different circumstances will require different rules and identifies the correct approach for a number of different scenarios:
Delivery charges that apply 'per product':
Where the charges are per product and the consumer must pay the delivery charge in order to purchase the product, then the cost should form part of the product price.
Delivery charges that apply 'per order':
Here, a marketer must state that charges apply and display the cost of delivery in a clear manner. Charges that are only revealed during the "checkout" process are likely to break the rules, so marketers should ensure that their websites offer a page or section where the delivery charges are viewable at any stage in the shopping process.
Delivery charges that cannot be calculated in advance:
CAP recognises that delivery costs cannot always be ascertained at the outset (for example, if the charge is based on the size or weight of the order). In such circumstances, marketers need to make clear on the product pages that delivery charges apply and make clear how they are calculated.
As eluded to in the enforcement notice above, the website will also need to make clear if delivery is not available to certain locations.
If a product is free, the guidance states that the marketer "may charge the un-inflated cost of postage for the item providing that it is made clear up-front that this charge applies".
On inflated delivery charges, all delivery charges should be accurate and reflect the true cost of delivery. They should not be used to offer a more attractive product price.
What should you do now?
Businesses, particularly those marketing online, should review the CAP's enforcement notice and guidance and consider whether their current delivery claims, product prices and delivery charges may in fact be inaccurate or unclear, and therefore misleading. Marketers should act sooner rather than later as the ASA will start to take action against non-compliers come 31 May 2018.
For more information on this topic, please contact Sonal Patel Oliva or your usual contact within Fieldfisher's Brand Development Team.
Co-authored by Alex Harbin.