The Advertising Standards Authority (ASA) has upheld a challenge brought about by sleep brand Emma, which contested that the claims made in a product listing on rival Simba's website were misleading.

The listing, seen on 5th January 2022, for the Simba Hybrid Mattress, featured the text '£919' crossed out, with '£588.16' written next to it, and 'NEW CUSTOMER PRICE' stated next to the listed prices.

At the top of the page, text in a banner stated 'New Customers! 36% off £300+ (T&Cs)', and a countdown clock was seen next to it.

Simba Sleep asserted that the price comparison featured in the ad was not against a previous price. As such, it understood that the ad was compliant with the CAP Code when it was live. Simba also did not believe that any CAP Advertising Guidance relating to new customer offers existed at the time of the promotion, and stated that the promotional price was available only to new customers, and that condition was stated clearly and accurately in the ad.

Simba emphasised that the condition was also highlighted in the accompanying terms, which explained that new customers must not have previously made any purchase from the Simba Sleep website. It also referred to a previous ASA ruling in which a new customer offer was found to be misleading because the ad did not sufficiently communicate the requirement to be a new customer in order to take advantage of the offer – and reiterated that this was not the case with its ad.

Furthermore, Simba confirmed that during the seven-day period between 4-10th January 2022 the mattress was sold at £919 to those customers who were not eligible for the new customer promotion. Consequently, it believed that '£919' represented a realistic and genuine selling price. Simba likened the 'new customer' offer to discounts that were offered to NHS staff or students because the two different prices applied to two different categories of consumer and the ad compared an existing customer price with a new customer price.

However, after investigation, the complaint was upheld.

The ASA noted the crossed-out price of '£919', alongside which was text stating '£588.16 NEW CUSTOMER PRICE'. It acknowledged that the promotional price saving applied to new customers, and considered that sufficiently signposted.

However, it also considered that consumers would understand from the struck-through price of £919 that the new customer price represented a reduction against the price at which the mattress was usually sold, and considered that consumers would also understand from the claim 'New Customers! 36% off' that they would be able to achieve a genuine saving of -36% against the usual selling price of the product.

The ASA believed that impression was reinforced by the presence of the countdown clock, which consumers were likely to interpret to mean that the price of the mattress would revert to the higher price once the countdown ended.

The ASA did not receive any pricing history for the product from Simba Sleep, and could therefore not determine whether the referenced higher price was the usual selling price. However, it noted several reference and promotional prices for the Simba Hybrid mattress seen in screenshots of the product listing over a three-month period shared by the complainant, and noted that the reference price of the mattress fluctuated throughout that period.

The reference price of the mattress was '£899' on 27-28th December 2021, '£919' on 5th January 2022, and '£999' on 2nd March 2022. Furthermore, the complainant submitted evidence showing that the mattress in 2021 had been on sale for 71% of the year. Given that the reference prices changed throughout a short period of time and the mattress had previously been discounted for a significant portion of time, the ASA considered that Simba Sleep had not demonstrated that the reference price of '£919' was the usual selling price of the mattress at the time of sale.

Furthermore, it considered the promotional discount offered to new customers in the ad, and that eight days prior, the mattress had been available to purchase at a cheaper price of £539.40 to both new and existing customers, rather than the more expensive promotional price of £588.16 which was offered exclusively to new customers in the ad.

Because it had not seen evidence that the savings claim represented a genuine saving against the usual selling price of the product, the ASA concluded that the savings claims in the ads were misleading, and that the ad must not appear again in the form complained of. The ASA told Simba Sleep to ensure its future savings claims did not mislead, and to ensure it substantiated savings claims against the usual selling price of its products.