Black Friday and Cyber Monday are fast approaching on 24 and 27 November, respectively. The average consumer spend on Black Friday is set to increase by 7.5% on last year to £184.55, with more than three-quarters of that amount expected to be spent online. Unsurprisingly, therefore, the Advertising Standards Authority (“ASA”) has issued guidance to avoid misleading delivery claims.
It is important that fashion brands ensure that they display clear and transparent information regarding delivery charges and shipping. Failure to do so could see fashion brands defending themselves from complaints made to the advertising regulator, the ASA, for breaches of the CAP Code.
What is the CAP Code?
The “CAP Code” sets out the rules which govern non-broadcast advertisements, sales promotions, and marketing communications. The CAP Code is set by the Committee of Advertising Practice (“CAP”); a self-regulatory body consisting of advertisers, media owners, and advertising agencies.
This issue of misleading delivery claims was the subject of ASA’s ruling against Gymshark in February 2023. The ASA found Gymshark to be in breach of the CAP Code as a result of the brand’s use of the phrase “next day delivery”, which the regulator determined to be misleading.
Gymshark had offered “next day delivery” on orders placed by 9pm on Monday to Friday and before 7pm on Saturday and Sunday. The complainant had placed their order before the stipulated cut off time. However, they failed to receive their purchases the following day.
The delivery information portion of Gymshark’s website set out a number of limitations in respect of the brand’s “next day delivery” claim. As such, next day delivery:
- was not available during key sales periods (such as Black Friday),
- was not available for deliveries to certain postcodes, and
- was calculated by reference to the date the order was shipped rather than when the order was placed.
The ASA concluded that consumers would interpret the phrase as meaning that, provided their order was placed before the stated cut off times, they would receive their order the following day. As such, the ASA upheld the complaint against Gymshark. The ASA therefore decided that the advertisement was misleading. It was also in breach CAP Code in that the marketing communication:
- was materially misleading,
- omitted material information (or hid that information), and
- failed to clearly state significant limitations and qualifications of the claim made.
Tips to avoid misleading delivery claims for fashion brands
How can you ensure that you don’t do a Gymshark and fall foul of the CAP Code with respect to delivery claims and charges?
It is important to avoid misleading delivery claims. This can be achieved by exercising caution when using statements that give rise to an expectation regarding delivery of goods, such as offering “next day delivery”. Even if that statement is qualified elsewhere on your website, it may not be sufficient to overcome the overall impression that the delivery claim gives, thereby misleading consumers.
Limit delivery claims. If the delivery claim is subject to limitations, ensure that those limitations are readily accessible and visible to consumers. For example, if your brand offers next day delivery from the day the order is shipped, ensure that is clearly displayed throughout the purchase process. It will not be sufficient to simply include those limitations in the shipping information or T&Cs, which could be in breach of the CAP Code for hiding material information.
It follows that any significant limitations or qualifications must be stated and can clarify a claim, but they cannot contradict it.
Delivery charges are “material information” and must, therefore, be presented in a clear, intelligible, and unambiguous manner.
The quoted price of the product must include all non-optional taxes, duties, fees and charges that apply to all or most buyers, including delivery charges.
Therefore, if the price of the product is advertised, you must also include information about applicable delivery charges. If delivery charges cannot be calculated in advance, then you must state that such charges are payable, make it clear that the advertised price does not include the cost of delivery, and must state how such charges are calculated. Again, this information cannot be buried in your T&Cs.
Equally, statements regarding the price of the product must not mislead consumers by omission, undue emphasis, or distortion. As such, you must not inflate the cost of delivery when it does not accurately reflect the true cost. Doing so is likely to render an advertisement misleading and in breach of the CAP Code.