Teal blue graphic

ASA adjudication clarifies rules on "next day delivery" claims

The Advertising Standards Authority (ASA) recently announced the outcome of its adjudication into a complaint that had been made against online fashion retailer Missguided. The complaint related to the Missguided's "FREE UK NEXT DAY DELIVERY" claim.

In deciding not to uphold the complaint, the ASA has helped clarify the law regarding "next day delivery" claims, and in particular when they might be considered misleading under the CAP Code.

The decision is likely to be of interest to all online retailers who frequently make next day delivery promises to their customers.

Next day deliveries

It is standard practice for online retailers to offer customers free next delivery on orders made before a certain cut-off period. The problem for retailers is that they are not always able to follow through with the claim, often due to factors that are out of their control.

In Missguided's case, deliveries were affected by a combination of a week-long internal warehouse failure and some couriers missing deliveries on Black Friday (28 November) and Cyber Monday (1 December); dates when many online retailers experienced an unprecedented volume of sales. As a result, Missguided was unable to meet some of its next day delivery targets.

But did this make the next day delivery claim itself misleading, as the complainant had alleged? Not so, said the ASA.

The ASA's position

The ASA took the view that, in order for the next day delivery claim to be substantiated, Missguided had to demonstrate that the complainant's experience was an "exceptional occurrence". They also had to show that they did consistently deliver items the next working day after an order was placed.

The ASA was ultimately satisfied that, although a small number of orders were not met by the target date, the vast majority of deliveries were in fact delivered the next day as claimed. Missguided provided evidence to suggest it had an average delivery success rate of around 98%, although this had dropped to between 90-92% on Black Friday and Cyber Monday. The ASA therefore concluded that the next day delivery claim was accurate and not misleading.

However, the ASA did emphasise that Missguided had not "guaranteed" next day delivery. Had they done so, the outcome might have been different.

Advice to online retailers

While the ASA was satisfied that no breach of the CAP Code had occurred in this instance, the ASA clearly does envisage that there are situations when the next day delivery claim could be misleading.

To minimise the risk in this area online retailers should consider doing the following:

  • Make sure that they are prepared for the worst case scenario during peak periods such as Black Friday, Cyber Monday and Christmas. The ASA pointed out that high demand during peaks seasons is entirely foreseeable. Retailers cannot fall back on exceptional demand alone as an excuse for failure on such occasions. 
  • Compensate customers when delivery targets are missed and warn them if the delivery will be late. One factor that may have worked in Missguided's favour was the fact that the complainant had been warned that the delivery would be late and offered a discount on future sales. It is also worth remembering that angry or dissatisfied customers are much more likely to complain to the ASA.
  • Be wary of giving customers the impression that next day delivery is guaranteed. The ASA is likely to take a much tougher stance where a retailer guarantees delivery and fails to follow through on the promise. Ideally, we would also advise that retailers warn customers on their website that next day delivery can never be guaranteed, highlighting the risk of factors outside of the retailers' control.
  • Audit delivery success rates. The delivery success rates in the Missguided case will serve as a helpful target for what the ASA deems as acceptable (ie 98-99% on normal days, 90-92% when the retailer is experiencing unforeseeable difficulties) and retailers should aim for this as a minimum. Steps should be taken to correct internal failures if delivery success rates fall below this level.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.

Insights & events View all