How careful do you need to be about making delivery claims like “Free UK Delivery”? Can you bury additional delivery charges for (say) the Scottish Isles in your T&Cs when making such an absolute claim? (Quick answer = no!).

The background

On 11 April 2018, the Committee of Advertising Practice (CAP) issued an Enforcement Notice, providing guidance to online and distance sellers regarding advertised delivery restrictions and surcharges. In particular, CAP issued a warning to advertisers regarding incorrect or misleading absolute “UK Delivery” claims. The Enforcement Notice made it clear that where advertising does not comply with the terms of the notice, targeted enforcement action would be taken in order to ensure a level playing field amongst retailers.

The development

In its Enforcement Notice, CAP provides retailers with a helpful breakdown of the most commonly used delivery claims, and the locational requirements of each claim. This guidance is limited to the presentation of delivery charges and restrictions in advertising, including any such claims on websites and social media pages.

(1) “UK Delivery”

Where a claim is made as to UK Delivery, a retailer should have delivery capability across England, Scotland, Wales and Northern Ireland, including mainland and islands (and the Scottish Highlands). However, this need not include any Crown Dependencies (Guernsey, Jersey and the Isle of Man). Where retailers make claims as to “FREE DELIVERY”, “FREE UK DELIVERY” OR “£x UK DELIVERY”, their delivery capability should be unqualified, and meet the requirements of UK Delivery as set out above. Further, retailers should ensure UK Delivery claims are only made if the price of the product is same across the UK, regardless of location. It was for this reason that a TV advert for a furniture company which featured the voice-over “Great brands, anywhere you can get online” was misleading – because there were size and weight restrictions to some parts of the UK, including the Shetland Islands and non-mainland addresses.

(2) “GB Delivery”

A claim as to GB Delivery will include English, Scottish and Welsh mainland and islands (including the Scottish Highlands), but need not include Northern Ireland or any Crown Dependencies. However, any surcharges or restrictions to excluded areas must be clear and upfront. Specifically, CAP warns retailers against including surcharges/restrictions relating to NI under “international deliveries”; this is considered misleading, as NI is a constituent part of the UK. This is why website claims for “Free delivery when spending over £200” and “Free UK delivery on all orders” was misleading – because the complainant lived in northern Scotland and incurred a delivery charge of £35.

(3) Mainland UK Delivery

CAP considers “Mainland UK” to constitute “Mainland GB”; it includes areas which are part of the GB landmass, or connected to the landmass by road or rail. To this extent, Mainland UK includes England, Wales, Scotland (including the Scottish Highlands), and land connected to the mainland by bridge (such as Skye or Anglesey). However, it does not include islands accessible by boat or water transport. Again, CAP urges retailers to ensure any surcharges or restrictions are clear and upfront.

Why is this important?

That CAP has issued an Enforcement Notice specifically regarding incorrect or misleading absolute “UK Delivery” claims highlights the emphasis that the ASA will place on this issue moving forward. The clear aim here is to create a level playing field amongst retailers, by tightening up on over-sold delivery claims.

Any practical tips?

Beware making headline claims about “Free UK delivery” etc., at least not without first checking if this really is the case. If there are additional delivery charges to, say, the Scottish Isles, then you will need to qualify the headline claim itself to be clearer on which regions actually fall within the free delivery zone (eg amend to “Free GB delivery”). CAP has been explicit in its Enforcement Notice that restrictions on delivery (eg in T&Cs) cannot contradict the headline claim.

Remember also that if there is a single compulsory delivery charge per item for all customers in the UK, then this delivery charge will need to be included in the price.