• At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
  • Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
  • Our Commercial Technology team has established itself as one of the strongest in the UK. We are ranked in Legal 500, Chambers & Partners and PLC Which Lawyer, with four of our partners recommended.
  • Our team provides practical and commercial advice founded on years of experience and technical know-how to technology and digital media companies that need to be alert to the rules and regulations of competition law.
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  • Kemp Little is trusted by some of the world’s leading luxury brands and some of the most innovative e-commerce retailers changing the face of the industry.
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The price is right: new guidance ahead of Black Friday promotions

Black might be the hardest colour in the world to get right according to Diana Vreeland but make sure you get your Black Friday promotions right with the latest guidance from the Advertising Standards Authority (the “ASA”).

The ASA has recently published new guidance ahead of a key date in the UK retail calendar, Black Friday. Black Friday is seen as a key indicator of a retailer’s sales performance over the whole Christmas period and with consumers keen to spend during this time many retailers will be planning their promotional activity.

The ASA have highlighted four key things to keep in mind to ensure those promotions comply with the relevant advertising codes.

1. Misleading claims

“10% off everything in store *

*subject to terms and conditions”

If an offer doesn't apply to everything then don’t claim that it does. Even with restrictions in footnotes or a note that certain items are excluded, if the headline message is that the promotion applies to all items then that headline claim is likely to be misleading to customers if it’s not true.

2. Savings claims

“Was £100, now £50”

Any promotions which suggest amounts that can be saved must be genuine, accurate and must not exaggerate the saving that could be made. It is important that pricing history and sales data are considered when deciding how to market a savings claim and the basis of the comparison must be clear. The “was” price should be the normal selling price and the higher price should have been consistently charged over a reasonable period.

3. “From” and “Up to” pricing claims

“Up to 70% off”

The Guidance for Traders of Pricing Practices issued by the Chartered Trading Standards Institute in 2016 states that when using “from” or “up to” to advertise a saving, a significant proportion of sale items must be discounted at the maximum saving. The claims must represent the true overall picture of the price promotion. The ASA will also consider the distribution of sale items across different pricing ranges. If a significant proportion of sale items with the maximum saving band had a disproportionately lower starting price, then this is likely to mislead customers.

4. Availability claims

“Subject to availability”

If the promotion is pitched correctly the products will be in high demand. The likely demand for the promotion must be estimated to avoid disappointing customers and if, during a promotion, the estimated demand can no longer be met, this must be communicated in a timely manner. Phrases such as “Subject to availability” are not always sufficient, if an offer has been promoted through a website or social media the ASA has suggested that that channel should be used to inform customers that stock has become limited.

The four areas highlighted above are just examples of the types of things retailers should consider when preparing any promotional advertising. The ASA can require that advertisements are amended or withdrawn if they breach to the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code) and so, at a high level, all advertisements should:

  1. be legal, decent, honest and truthful;

  2. be prepared with a sense of responsibility towards consumers and society; and

  3. adhere to the principles of fair competition.

Contact our experts for further advice

View profile for Gemma LockyerGemma Lockyer