The festive period is about to kick off with Black Friday. For many retailers, this marks the start of the holiday shopping season. If you are considering offering discounts and running a price promotion this festive season then Gemma Lockyer, a senior associate at London law firm Kemp Little, has answers to some of the key questions you might be considering.

I’m marking down the price of certain products from their usual RRP. How can I alert customers to the saving they’re making?

Any claim you make about an amount that can be saved must be genuine, accurate and must not exaggerate the saving. It is important that pricing history and sales data are considered when deciding how to market a savings claim; the basis of the comparison must also be clear.

For example, in a “Was £50, Now £25” style claim, the “was” price should be the normal selling price. This higher price should also have been consistently charged over a reasonable period. It is not acceptable to raise prices the week before you go into markdown and then advertise the saving against the higher “was” price.

The markdown applies to pretty much everything I’m selling. Can I advertise the promotion as “X% off everything in-store?

If an offer does not apply to everything then you should not claim that it does. Even if it is close to everything, this would mislead customers. Do not be tempted to make a headline claim with restrictions in a footnote or with a smaller message to state that certain items are excluded. If the headline claim is that the promotion applies to everything in-store/online, then the promotion does need to apply to everything in-store/online.

The Advertising Standard Authority (ASA) upheld a complaint that an email stating “PRE-BLACK FRIDAY EXTREME FLASH SALE. EXTRA 25% OFF” was misleading, despite further text confirming that “Usual exclusions apply…” and that the offer “*Excludes electronics, entertainment, consoles, photo gifts… *Unless otherwise stated usual discount code exclusions will apply. Please refer to the website for further details”.

This was because, amongst other issues, the promotion did not apply to a large proportion of the products on the website. There were also a significant number of exclusions in product categories and brands.

Would it be safer to advertise the markdown as “Up to X% off”; rather than suggesting the saving applies to everything?

Advertising a saving as “from X% off” or “up to X% off” must still represent the true overall picture of the price promotion. This would require a significant proportion of sale items to be discounted at the maximum saving stated.

The ASA will also consider the distribution of sale items across different pricing ranges. You may be found to have misled customers if a significant proportion of sale items in the maximum saving band had a disproportionately lower starting price.

If I’ve advertised my promotions well then hopefully products will be flying off the shelves. Is there anything I should do if I might run out of product?

You should estimate the demand for a promotion in advance to avoid disappointing customers. If you estimate demand can no longer be met, you must communicate this in a timely manner.

Phrases such as “Subject to availability” are not always sufficient. If you promote an offer through a website or social media the ASA suggests the same channels should inform customers that stock has become limited.

What happens if I get my promotional advertising wrong and breach the law?

The ASA regulates all non-broadcast marketing communications, from traditional print advertisements in newspapers or leaflets to online advertisements or emails. The ASA is responsible for enforcing the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code).

It states that it proactively monitors adverts across different sectors to make sure standards are being maintained. When an advert clearly breaks the rules, the ASA will seek assurances from advertisers that those adverts will be withdrawn or amended.

The ASA does not have the power to enforce fines for breach of the CAP Code. However, you should not underestimate the power of bad publicity. If you find yourself subject to an ASA ruling it will be published in full on its website; whether upheld or not.

You should also keep in mind that breach of the CAP Code may also put you in breach of other laws applicable to advertising for which fines and/or a prison sentence of up to two years could result.

Is there anywhere I can go to get more guidance in relation to the promotions I’m planning to run?

The ASA has recently published a helpful advice note that contains more detail on how the CAP Code applies to promotions this Black Friday. You can find links to various other helpful guides on running promotions on its website.

To find out more about how Kemp Little’s specialist retail team can support your business, please click here.