Black Friday and Cyber Monday are only a few days away, with many big retailers and pure e-commerce brands like Shein ramping up for the big event, even advertising ‘early bird’ promotional deals.  So, how can businesses steer clear of any advertising mishaps? Here, Beyond Corporate’s Managing Partner, James Corlett, and Trainee Solicitor, Molly Hackett, offer their advice on Black Friday advertising and share their tip tips for protecting your business.

Black Friday and Cyber Monday, as many people will be aware, is a shopping spree phenomenon that originates from our friends across the pond. Although the nation hasn’t bought into it to the same extent as our North American cousins, there are still enough fist fights over electrical appliances to mean it’s a busy time of year for retailers and direct-to-customer brands.

With online marketing through social media channels becoming a more popular platform for brands year on year, from TikToks to Instagram reels, brands need to be careful that they are advertising in a clear, transparent and ‘consumer friendly’ way, to avoid running into issues.

Why do brands need to be worried about advertising deals?

Other than avoiding a black eye by customers wrestling for a ‘bargain’. Businesses need to be very careful to ensure that their ads are clear and transparent about what’s on offer. Breaching the Advertising Standards Authority‘s CAP (Committee of Advertising Practice) Code could lead to negative publicity and potential fines. A notable example (although not related to Black Friday) of this was in 2013, when Tesco was fined £300,000 for a misleading “half price” promotion of strawberries.

How can I make sure I don’t run into trouble?

You can do this by following the CAP Code, we have identified some key areas below:

Savings

Advertisers making claims about savings need to ensure these claims are genuine, accurate and must not exaggerate the saving that could be made. Advertisers have to be careful about not inflating prices to just reduce them at a later date. Asda fell foul of this a few years ago when it was found to have artificially inflated the cost of a cereal pack which was then included the next day in a ‘discount’ multi-buy offer. The ASA considered this misleading.

‘All!’ and ‘Everything!’

If an advertiser wants to attract attention to its sale by including phrases like ‘up 50% off everything’ then all items will need to have been discounted in price and a significant proportion will need to have been reduced by the full 50% discount.

Price comparisons

Businesses need to make sure price comparisons are accurate and hold evidence to substantiate the usual selling price of their products.

Conditions and Exclusions

If conditions and exclusions apply to any ads, then these should be clearly outlined in the ad. The T&Cs should also reference the products to which they refer. The HUT Group previously ran into trouble with the ASA when it issued a Black Friday email, as sufficient information relating to the exclusions was not included in the marketing communication.

Availability

Promoters should also ensure they make a reasonable estimate of the expected demand for their promotions. This is particularly important in the context of Black Friday when retailers are likely to face a spike in demand in line with the rest of the market. Regulators expect advertisers to do their homework on this and puts the onus on them to assess the likely response. If demand can’t be met, then the ASA expects timely updates to be provided.

Our top tips

Avoid artificially inflating prices in the run up to Black Friday: regulators will likely take a dim view of such ‘yo-yo’ pricing.

Demonstrate that a significant proportion of products are available at the stated price/discount when using “from” or “up to” prices or savings.

Ensure price comparisons can be backed up, for example with historical pricing records – and make sure you hold objective evidence before any claims are made.

Assess the response to a previous promotion for similar products, ensure that availability updates are provided when possible and remember that phrases like “subject to availability” aren’t always sufficient!

Whilst we can’t help with avoiding Black Friday and Cyber Monday free-for-alls, if instead you would like advice on your promotional marketing, our Commercial Team is happy to help. Get in touch today.

If you have any questions or require any further advice on this topic, get in touch with our specialist teams today at hello@beyondcorporate.co.uk

[This blog is intended to give general information only and is not intended to apply to specific circumstances. The contents of this blog should not be regarded as legal advice and should not be relied upon as such. Readers are advised to seek specific legal advice.]