The Advertising Standards Authority (ASA) has upheld a complaint made against Origin Sleep UK ltd t/a Origin Mattress which covered three issues. The complainant (Emma Matratzen GmbH, part of the Emma Sleep group – more on the significance of this later) challenged whether, in relation to a webpage seen in August 2024:
- the use of the countdown clock misleadingly implied that the sales promotion was time-limited, because the same promotion was still available under a new name shortly after the countdown ended; and
- reference prices and associated savings claims made for the "Mega Summer Sale" were misleading and could not be substantiated.
The third issue raised was if efficacy claims related to the orthopaedic and health properties of Origin Mattress' products were misleading and could be substantiated, which we will not focus on in this article (save to say that the ASA also upheld this complaint on the basis that they did not receive evidence from Origin Mattress to substantiate any of the claims made).
What did the website say?
The website included a banner at the top that included text which stated, "Mega Summer Sale up to 45% off [...] ending in [...]" followed by a countdown clock showing the days, hours, minutes and seconds left of the sale.
In addition, a webpage titled "SALE", included links to the "Origin Hybrid Mattress" and the "Origin Hybrid Pro Mattress". Text under the "Origin Hybrid Mattress" listing stated, "Up to 40% off", under which the original price of £465 was shown with a line crossed through, followed by the sale price of £279.00. Text at the bottom of the listing for the "Origin Hybrid Pro Mattress" stated, "Up to 45% off – ENDS SOON", under which the original price of £961.00 was shown with a line crossed through, followed by the sale price of £529.
What did Origin Mattress say?
...nothing. Origin Mattress didn't respond to the ASA's queries. The ASA mentioned in their ruling that it was concerned by the lack of response and apparent disregard for the CAP Code – a reminder to all that staying silent is not necessarily a good defence!
What did the ASA say?
Use of the countdown clock
The ASA considered consumers would understand that the promotion was ending soon, and once the countdown clock reached zero, the products included in the sale would return to their usual selling price, and that the use of the phrase "Mega Summer Sale" reinforced the impression that the promotion was time-limited. However, the day after the "Mega Summer Sale" ended, the website displayed a new sale with a different name, offering the same discounts. In addition, the ASA considered that the countdown clock was likely to pressurise consumers into making a swift transactional decision, including purchasing products, without giving their purchase the due consideration they normally would, because of the misleading implication that the sale would finish at the end of the time period displayed by the countdown clock.
As a result, the ASA concluded that the claims were misleading.
Reference pricing and savings claims
The ASA considered that:
- consumers would understand from the struck through prices that the sale prices for both mattresses represented a reduction against the price at which they were usually sold at the time the ad appeared; and
- consumers would understand from the claims "Up to 45% off" and "Up to 40% off" that they would be able to achieve a genuine saving of up to 45% and 40% against the usual selling price of the mattress, which was further reinforced by the presence of the countdown clock (as discussed above).
Because the ASA didn't receive any pricing history for the products from Origin Mattress, it wasn't able to see if the referenced higher prices were the usual selling prices. However, Emma Matratzen GmbH shared screenshots of product listings which showed that between 17 November 2023 and 31 January 2024 the Hybrid Pro mattress had been consistently advertised as being on sale, with the same reference and sale prices of £961 reduced to £529. During that timeframe, the Hybrid mattress had also consistently been advertised at a reduced rate, with a reference price of £499 and a sale price of £299. Throughout that timeframe, both mattresses were advertised as being available at a 45% and 40% discount as part of a series of concurrent sales ("Black Friday", "New Year Sale", Mid-Winter Sale", Sleep Better Sale").
Because the ASA had not seen evidence that the savings claims represented a genuine saving against the usual selling prices of the products, it concluded that the savings claims were misleading.
Wider context
As we have reported on previously (see here and here), the Competition and Markets Authority (CMA) has, over the last couple of years, been investigating pricing practices deployed by online mattress retailers and, as a result of that investigation, has issued specific guidance in relation to the sector (although it has indicated that it intends to take the same approach with other retailers) which can be found here.
The CMA's investigation resulted in Simba Sleep signing undertakings to promise it will change its practices. However, the Emma Group (which includes the complainant of this ASA complaint, amongst others) has refused to settle with the CMA, and so the CMA is now seeking a prosecution through the courts (see here for further information).
In its guidance, the CMA has stated that whether a price comparison is genuine depends on both of the following principles:
- The duration of an offer: the 'was' price must be offered for a sufficient period of time under the same circumstances (in this case all online selling channels), immediately before the discount begins. The duration of the 'was' price offer cannot be shorter than that of the discounted offer price (the 'duration requirement' principle).
- The volume of an offer: a sufficient number of sales should have been made at that 'was' price. At least 1 product should have been sold at the 'was' price for every 2 products sold at the discounted price (the 'volume requirement' principle).
The duration requirement principle is already well established, but the standard the CMA has set for the volume requirement principle is new and is likely to be quite difficult to comply with for a lot of retailers.
Of course, the ASA and CMA are separate and independent regulators, but it is quite interesting that the ASA didn't touch on this principle in its assessment of Origin Mattress' reference pricing claims. One could speculate that part of the reason for Emma Matratzen GmbH making the complaint might have been to see how the ASA addressed this principle (as a litmus test to see how the courts might address it) but, alas, the ASA decided instead to simply ignore it and is perhaps awaiting the outcome of the Emma/CMA court case. Also, when our colleague Brinsley held his recent fireside chat with Guy Parker from the ASA, they discussed this issue and Guy mentioned that the pricing experts from various regulators and trading standards would be meeting soon and the CMA guidance would be on the agenda. So watch this space.
We will be keeping a keen eye on the progress of that case as it makes it way through the courts to see what the outcome is. In the meantime, retailers should use this upheld complaint as a reminder to ensure their pricing practices fall on the right side of the guidance before it's too late.
“ The ad must not appear again in its current form. We told Origin Sleep UK Ltd to ensure their ads did not mislead as to the closing date/time of promotions, or imply that discount offers were time-limited or would not be repeated if that was not the case. We also told them to ensure that future savings claims did not mislead, and to ensure they substantiated savings claims against the usual selling price of their products. ”
