Institutions are rarely inclined to admit to their own mistakes. And for an institution to initiate its own remedial action to correct its own mistake is rarer still. So the ASA is to be congratulated for publishing an amended decision this week about a complaint that was upheld against Amazon in August 2016. We've never come across it before in the history of the ASA, but it demonstrates a welcome degree of regulatory sophistication.
The complaint centred on claims that speakers that were sold for £18.49 were "Eligible for FREE UK delivery" (as stated on the listing page) and “Price: £18.49 & FREE Delivery in the UK on orders over £20. Details … Dispatched from and sold by Amazon” (as stated on the product page).
The problem was the considerable complexity about which items would be "eligible" for inclusion when calculating an order value and therefore determining whether the £20 threshold had been reached.
The ASA originally upheld the complaint because the consumer had to make the transactional decision to add the goods to their basket, along with other goods, in order to ascertain whether the order would attract a delivery charge, and if so, how much it would be. The fact that the "standard" delivery charge could be "estimated" later in the transactional journey originally led the ASA to conclude that this information could be provided before consumers made a transactional decision without all the relevant material information.
The ASA subsequently decided to look again at this decision, mindful of the potential impact of this decision for online traders. The ASA also consulted with Amazon's Primary Authority, Hertfordshire Trading Standards Service. On reflection, the ASA concluded that because the process for determining delivery options was complex and multifaceted, the delivery charge for a basket could not reasonably be calculated in advance. As a result, Amazon was not required to state the applicable delivery charges, and it was sufficient to state that charges were payable.
Unfortunately for Amazon, they're still not entirely out of the woods, or jungle. The second limb of the complaint remains 'upheld' because the claim "FREE delivery in the UK on orders over £20" implied that any order over £20 would be eligible for free delivery. In fact, there is rather more to it than that for reasons that will become clear if you read the whole adjudication.
So procedurally, this is an interesting decision, as it appears to be the first time that the ASA has reversed a decision of its own volition.
And substantively, it is also significant, as it recognises that in some circumstances, consumers can legitimately be asked to make a transactional decision without being provided with detailed material information, provided that they have been warned that other charges may apply.
THIS RULING REPLACES THAT PUBLISHED ON 3 AUGUST 2016. THE DECISION IN RELATION TO POINT 1 HAS BEEN REVERSED, MAKING THE COMPLAINT ON THAT POINT NOT UPHELD. Summary of Council decision: Two issues were investigated, one of which was Upheld and one Not upheld..