Investigations into both companies were part of a wider piece of work on “online choice architecture” by the advertising watchdog.
Last December, a Nike advert that appeared on The Sole Supplier’s X account featured a pair of trainers with the caption reading: “Now just £26 at Nike!” The ad featured an exploding head emoji and a black heart emoji, to emphasise what a great deal was on offer.
The ASA said the ad would lead browsers to expect a significant discount and assume the shoes must be available in a range of sizes.
But when shoppers clicked through to find the shoes, they were only available in older children’s sizes – UK 3 to UK 6. As VAT isn’t levied on children’s shoes, the attractive price was less of a bargain than it initially seemed.
The ASA noted there was nothing in the ad to indicate the trainers were intended for older children or that they were available in limited adult sizing.
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Nike claimed the ad was created and published by The Sole Supplier without any input or oversight from it. However, it maintained that the ad was not misleading, arguing a reasonable consumer “would assume there would be some limitation on the item such as the availability of sizes”.
But the ASA noted that “there was nothing in the ad to indicate to consumers that the trainers were intended for older children or that they were available in limited adult sizing, nor were there any visual cues, such as a sense of scale, to indicate the smaller size of the shoes. We therefore considered that consumers would rely on their own assumptions when interpreting the ad and, in the absence of any information to suggest otherwise, we considered most consumers would reasonably assume that the trainers were for adults.”
Subscription option issues with Sky’s NOW TV
In the case of Sky, the ASA criticised the way subscription options were presented to customers signing up for Sky-owned streaming service NOW TV.
In December, the NOW TV website directed consumers to options for buying a subscription. Customers who signed up found that free trials for its Cinema and Boost services were automatically added to their basket and would auto-renew for a fee unless cancelled at the end of the seven-day free trial period.
Small text stated: “After your seven-day free trials, membership auto-renew[s] monthly at £9.99 for Cinema and £6 for Boost. Cancel anytime”.
But the ASA pointed out that this information was in a smaller font and a less prominent colour. The watchdog challenged whether the presentation of the options was misleading.
Sky UK Ltd, trading as NOW TV, said it believed that the presentation of the ad was clear to consumers. It highlighted that consumers were invited to select their preferred membership with the button “Choose your membership”, claiming that use of the word “choose” meant customers would understand they would subsequently be presented with further options.
But the ASA ruled that the ad was misleading “because the text outlining the significant conditions of the free trials was not clear in either size or clarity of font and did not immediately follow the reference to the free trials.”
‘It’s right that the ASA is choosing to act’
Rocio Concha, Which?’s director of policy and advocacy, said: “Consumers are exposed to a whole range of misleading business practices while online, making it difficult for them to make informed choices about the products and services they buy, so it’s right that the ASA is choosing to act when it spots examples of poor behaviour.
“It’s crucial that regulators leave businesses in no doubt that they will not tolerate misleading practices that can unduly impact consumers’ choices or leave them in the dark over the terms of their purchase.”
