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Home Rulings TAKEALOT.COM / PHILIPS VIVA COLLECTION AIR FRYER / THALISSA PILLAY / 2017-7099F

TAKEALOT.COM / PHILIPS VIVA COLLECTION AIR FRYER / THALISSA PILLAY / 2017-7099F

Mrs Pillay lodged a consumer complaint against Takealot’s Facebook advertisement. The advertisement promotes the Philips Air Fryer that is sold at a discounted price, and states the following: 

"Shopping has never been more convenient.

Get there deals delivered to your home or office.

- 45%

R1499

R2749

Philips – Viva Collection Air Fryer – Black”

 

COMPLAINT

The Complainant submitted that the advertisement is misleading as it states that the product sold at R1499, but when she clicked on the advertisement, it directed her to the website Takealot.com which indicated that the product was actually sold at R1949. 

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

In light of the complaint Clause 4.2.1 of Section II (Misleading claims) was taken into consideration.

RESPONSE

The Respondent submitted that it engages the services of independent contractors for the placement of Takealot advertisement on a network of third party websites, including Facebook. It explained that the contractors receive information for the advertisements from Takealot and assume responsibility for uploading that information correctly and timeously onto third party websites. 

The Respondent argued that it neither monitors nor is responsible over the Facebook advertisement. The third party Contractors are responsible for updating information on Facebook and at times this is not done in real time, which may occasionally result in discrepancies in the advertised price of a product on the third party website and a product’s actual price on www.takealot.com.
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ASA DIRECTORATE RULING

The ASA Directorate has considered all the relevant documentation submitted by the parties. 

Clause 4.2.1 of Section II stipulates that advertisers may not mislead people by means of ambiguity, omission or exaggeration.

The Directorate notes, firstly, that it does not have jurisdiction to order an advertiser to honour an advertised deal. Secondly, it appears that the price in the Facebook advertisement was only on the advertisement, and the correct price was on the Respondent’s website at the time the Complainant viewed the product in question. 

The Respondent has submitted that the advertisement in question is controlled by an independent contractor who uploads and updates information about products on offer from time to time. The price was correct at the time that it was provided to the third party, but was not updated in time. The Respondent appears to abdicate any responsibility for this, stating, "Takealot has no control over the third-party websites and as a result relies on the contractors to ensure that such websites are updated. . .”. The Respondent also provided no undertaking to immediately remedy the problem.

The Directorate rejects this argument. If the Respondent uses third party advertisers, then the Respondent must ensure that checks and balances are in place to ensure that such advertisers only display correct information. The reality is that it is the Respondent who benefits from the traffic flow to its website, and the Respondent who must take responsibility for the actions of the third party advertiser – in much the same way as an advertiser cannot hide behind the defence that their advertising agency made a mistake.

The Directorate also notes that, while the decisions of the Wireless Applications Service Providers’ Association (WASPA) are not binding on it, the above approach is in line with WASPA’s approach to affiliate marketers.

The advertisement promotes the sale of a Philip Air Fryer at a price of R1499, but when the Complainant clicked on the product, she was directed to the Respondent’s website which indicated a different price of R1949. The Complainant was misled by the pricing in the advertisement. 

The Directorate accepts that errors do sometimes make their way into advertising; however, the advertiser must show that it took reasonable efforts to correct such errors and accommodate aggrieved customers. The Respondent should create processes that ensure that the independent contractor uploads and updates information correctly and on time, so to avoid situations where discrepancies in prices may occur. In the face of evidence that such a process existed, and that immediate steps were taken on receipt of a complaint, the Directorate would be more sympathetic.

Given this, the advertisement is found to have been misleading and in contravention of Clause 4.2.1 of Section II of the Code.

In light of the adverse ruling made above, the Respondent is instructed to:

  • Withdraw the disputed advertising; 
  • Ensure that the process of withdrawing the advertising is actioned with immediate effect on receipt of this ruling; 
  • Ensure that the process of withdrawing the advertising is completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
  • Refrain from using the disputed advertising again in its current format.
The complaint is upheld.

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