HM Insights

Do you deliver? Being truthful in your online advertising

Often, customers are enticed by online businesses' "free" offers, including free postage, free delivery and such like. In the UK, alongside important laws such as the Consumer Protection from Unfair Trading Regulations, and The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations, there exist the Codes of the Advertising Standards Authority (ASA), which regulate fairness in both online and offline marketing.

Delivery offers are an area where the ASA have recently made some significant comment, noting that “companies must honour the delivery claims they’re making or stop making them" and “it’s simply not fair to mislead people about whether parcels can be delivered to them, or how much it will cost".

Both the Scottish Government and Citizens Advice Scotland have also weighed in, mentioning how advertising practices are discriminating against people in outlying areas.

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Why what you say about delivery charges is important

So what do these Codes say about offering to deliver for free in an online environment? Well, this is an area where (as one would expect) there have been a number of key decisions as retailers seek to steal a march on their rivals.

Delivery charges are material information under the Codes, being information which is likely to directly affect a purchasing decision. What you say about delivery charges is important.

First of all your delivery charge information needs to be clear and readily available. Hiding it, or making it difficult to decipher is likely to cause issue.

The information should be available close to the relevant product listing, and prominent. If charges are worked out on a case-by-case basis, dependant on certain factors, then how they apply and how they are calculated should also be made clear.

If there are limitations, for example some areas are not served, then this must be stated. Remember the UK includes Northern Ireland and all of the Scottish islands, and UK mainland would include every far flung part of the Scottish Highlands. This is important when offering UK-wide or next day delivery – can you fulfil these promises ?

The manner of representation is also important. If you place a lot of prominence and emphasis on your free or UK-wide elements, then qualify these with minor footnotes, you run the risk of your advertising being unacceptable. This applies equally to minimum spend limitations as it does to capacity qualifications.

Examples of unacceptable practices

Hidden charges also need to be avoided – if your product is free then your postage costs should be uninflated, and there shouldn't be things like administrative charges.

Examples of unacceptable practices include Priyankas Design Pvt Ltd t/a Sharnam Art, which covered an offer for jewellery whose price was "£0.01 + £10.49 UK delivery"; in this case the information was found to be unsubstantiated (none of the provided invoices had delivery charges set at that level) and misleading, as it did not reflect the true cost of postage. See also the ASA's adjudication on PUA Training Ltd, which found that advertising for free software that incurred a $14.95 delivery charge also was misleading.

In roomstogo Ltd the ASA considered an offer which stated "free delivery When spending over £200" and "FREE DELIVERY ON ALL ORDERS", but which was then qualified with geographical limitations. The ASA found this to be confusing, and therefore misleading.

This was also the case in the Ebuyer (UK) Ltd decision, which found that advertising text which was "double qualified" (i.e. it contained qualification in its main text, then further qualification in linked text) was misleading.

In ACHICA.com, the advertising depicted a man in a rural setting with text stating "I FOUND JUST what I wanted IN THE MIDDLE OF NOWHERE" and a voice over relaying "Great brands … anywhere you can get online". The business did not deliver to the Shetland Islands and as such the advertising was found to be misleading.

In Noa and Nani Ltd, the business offered “FREE UK DELIVERY ON ALL ORDERS”, but charged for Northern Irish delivery. This was contrary to the ASA's codes and they suffered a negative decision as a result.

What happens if you break the rules?

Overall, the VistaPrint Ltd case states it well - omitting, hiding or presenting material information in an unclear, unintelligible, ambiguous or untimely manner breaks the rules.

The ASA have some significant powers. UK broadcasters are obliged to follow their decisions. They can refer matters to bodies such as Trading Standards and Ofcom for further action. Decisions are published, and often become well publicised, including in search results. Trading privileges such as Royal Mail bulk mail discounts can be withdrawn, and paid for search engine advertisements can be removed.

All in all, it pays to be compliant.