Fashion will be in the sights of the Advertising and Standards Authority and the Information Commissioner’s Office – 2 of the 3 main regulators of the fashion industry – this Black Friday. This follows on from complaints received by the ASA after Black Friday 2023 concerning a series of posts made by PrettyLittleThing.
PLT and the ASA
PLT published 15 posts on their X (formerly twitter) page between Thursday 23 and Tuesday 28 November 2023. The posts were a series of advertisements offering limited-time discount codes such as:
- A post at 12.00 pm on 23 November stated “3 HOURS ONLY CODE PINK33 For 33% off EVERYTHING”.
- A post at 12 pm on 25 November stated “PINK 40 PLT PINK FRIDAY is here to stay Shop 40% Off ALL DAY”. An image included the large text “40% OFF EVERYTHING*” and very small text that stated “EXCL SALE AND BEAUTY”.
- A post at 11:02 am on 27 November stated “99% OFF IS COMING BACK FOR ONE HOUR ONLY Set your alarms for 12pm today… ‘PLTPinkFriday’”.
- A post at 3 pm on 28 November stated “PINK MONDAY EXTENDED Use ‘PINK35’ for 35% Off Everything*”.
- A post at 9.00 am on 30 November stated “FINAL 24 HOURS LAST CHANCE to get 40% Off Everything Use: ‘FINAL40’”.
The ASA upheld that:
1. the ads misleadingly implied that the promotions applied to all products sold by PLT;
2. the absence of closing dates from ads, and the inclusion of closing dates from ads when promotional periods were shortened or extended, breached the Code; and
3. the ads misleadingly implied that further discounts would not be available when the promotion ended.
Information about what product lines were included in the promotions should have been included in the advertisements given that it was a significant condition that was likely to influence consumers’ decisions. The absence of this information alongside the headline claims of “everything” and “every single thing” created a misleading impression as to what products were included in the promotions.
The reputation of the exact dates of the Black Friday period in the UK was not sufficient to demonstrate that customers would know when the promotions ended. The use of terms such as “Pink Friday” and “Pink Monday” referenced PLT’s Black Friday promotional periods and would be considered separately to the traditional Black Friday periods.
The availability of detailed conditions on the PLT website that customers could review and the insertion of qualifying information through asterixis was not enough to give clarity to customers’ expectations. Because the discounts ran back-to-back it was rare for there to be any periods in which the items were not subject to a promotional discount. Once one promotional period expired, another promotional period providing a further discount on the same items would immediately begin, misleading customers about the quality of the first discount. This was also the case when promotions would be described as “for one hour ONLY” on Black Friday, only to be repeated on Black Monday.
Consumer Protection
Following on from the PLT fallout fashion retailers should ensure that their Black Friday 2024 advertisements:
- do not mistakenly state or imply that promotions include all product lines through language such as “everything” or “every single thing”;
- do not mistakenly imply that product lines across all product types are included;
- clearly detail any significant conditions and qualifications to the promotions;
- do not mislead regarding the closing time of promotions; and
- do not mistakenly imply that discounts are time-limited or will not be repeated.
In the spirit of conducting promotions equitably and fairly, retailers should not change promotion closing dates unless unavoidable circumstances outside their control make it necessary.
Retailers should be aware of that running multiple promotions or discounts may potentially mislead customers.
By adhering to the ASA’s guidelines, retailers can avoid similar breaches during Black Friday 2024 promotions and maintain consumer trust.
Data Protection
To drive sales during Black Friday, many retailers will no doubt be looking to launch targeted email marketing campaigns and use cookie (and similar online tracking) data to personalise the online shopping experience. Whilst these strategies can increase engagement, brands must consider customer privacy and ensure compliance with data privacy laws, in particular the Privacy and Electronic Communications Regulations (PECR), or risk fines and reputational damage.
Direct marketing
When sending marketing emails or SMS (or chat) messages, businesses must have obtained prior opt-in consent beforehand. For consent to be valid, it must meet the GDPR threshold: it must be freely and voluntarily given, specific, clearly informed, separated (that is, not buried in your T&Cs or privacy policy) and be a clear indication of that person’s wishes. Pre-ticked boxes or vague consent statements are not sufficient. You must also be able to demonstrate consent and subscribers must be able to be withdraw their consent easily.
However, businesses can rely on the ‘soft opt-in’ exception for existing customers. If someone has bought from you before, they can receive marketing about similar products, provided they were given the chance to opt-out at the point of sale (or negotiations for sale) and with every subsequent message (usually by way of an ‘unsubscribe’ link).
If the above conditions are not met, you cannot rely on soft opt-in and, therefore, must obtain consent as explained further above. For example, soft opt-in cannot be relied upon by a business (let’s call them XYZ) which buys in a mailing list to market XYZ’s own products. This is because XYZ did not obtain the contact details contained in that mailing list at the point of sale. XYZ would instead need to be satisfied that each individual in the mailing list gave GDPR-valid consent for XYZ to market to them.
The ICO has recently taken action – and has issued fines – against businesses in breach of the PECR marketing rules.
Cookie compliance
With Black Friday driving more traffic to websites, it is an appropriate time for brands to ensure their websites comply with the cookie rules under PECR. Indeed, the ICO has become more active in cookie compliance enforcement in recent years. Last year, it investigated the UK’s top 100 websites and issued stark warnings to more than half of these websites which were using advertising cookies in a non-compliant way.
When users land on a site, they must be asked to consent to non-essential cookies via a clear cookie banner or pop-up (see above for a summary of the consent threshold requirements). Simply continuing to browse does not qualify as consent. Users must actively engage with the banner to allow cookies on their device, particularly those which track users for personalised or targeted ads (which are arguably the most intrusive). Websites must not switch on any non-essential cookies before a user takes some form of affirmative action (i.e. clicking the ‘Accept’ button). If a user declines, then obviously those declined non-essential cookies should remain switched off with regards to that user’s device.
Transparency is equally important. Websites also need a clearly-written cookie policy, both easily accessible from the cookie banner and also linked at the footer of the site. Cookie policies should detail what cookies are being used, their purpose, and whether third-party services, like advertising networks, are involved.
Take away point
Beyond the legal risks, consumers are increasingly upset by misleading advertisements as well as being privacy-conscious. Using misleading advertisements or failing to respect their preferences – or both – can damage trust. Compliance with the ASA’s guidance as well as PECR (and GDPR) is not simply legal necessity, it is also vital for consumer engagement and to protect brand reputation.
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