DECISION Meeting 8 February 2005

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                                  Meeting 8 February 2005

Complaint 04/459

               Complainant: T. Annan
               Advertisement: Bed, Bath & Beyond

Complaint: The brochure advertisement for “Bed Bath & Beyond” Hamilton, Rotorua and
Tauranga, pictured a mosquito net suspended from a hoop, for $9.90.

Complainant, T. Annan, said:

“Advertisement -
What: Mosquito Net
Where: Brochure
When: About 2-3 weeks ago
Description: Bed Bath & Beyond advertised mosquito nets for $9.90 in their brochure which
I received by post early December. I am sorry - I don’t have the picture any longer but if
necessary, I’m sure I could get hold of another brochure. Please let me know if I should do

Complaint -
When I went into the store and picked up the product that was in the brochure picture I was
informed that the ones in the brochure hadn’t yet arrived (although the product in my hand
was EXACTLY the product in the brochure). She told me that the one I was holding was
$19.90, not $9.90. I went back a few days later when they had arrived but I was presented
with an entirely different brand quality of mosquito net. When I got home I realised on my
receipt that I had been charged only $7.90. The next day I rang and said I wished to return the
product as it was not the same as what had been advertised and did not in fact, fit my bed.
The woman was rude and when I told her I would be bringing it back in for a refund she said
“That’s fine then” and hung up on me. As a side issue - when I searched on the internet for
their phone number - my search brought up a ‘decision’ by yourselves for a similar problem
with them in 2003 (numbered complaint 03/132) - although I have my money back now I
think they need to understand that misleading advertising is unfair and not acceptable. … I
really do feel they are being unfair picturing a better more expensive brand on a cheap price. I
hope that they are no longer allowed to advertise this way.”

The Chairman ruled that the following provision was relevant:

Code of Ethics

Rule 2: Truthful Presentation - Advertisements should not contain any statement or visual
presentation or create an overall impression which directly or by implication, omission,
ambiguity or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the
consumer, makes false and misleading representation, abuses the trust of the consumer or
exploits his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as such, is
not considered to be misleading).

The Advertiser, Bed, Bath & Beyond, said:

“Please find below our response to the customer complaint that has been brought to your/our

"Bed Bath and Beyond take all customer queries or complaints very seriously.
 It is therefore essential that I take this opportunity to fully explain the possible reasons for
the complaint and the subsequent actions that we have taken to ensure that this concern does
not arise in the future.

The photograph we used in the "Best Buys" ad in question is a generic photo depicting what
we considered to be a fair representation of the product we were offering for sale at that time.
The product had been advertised previously at $9.90 and would be reduced further to $7.90
for the purposes of the Best Buys ad. It is our policy to ensure that our products are clearly
priced to avoid confusion when there are varying products of a similar appearance in-store.
We place great emphasis on customer service and the customer's subsequent satisfaction and
it is disappointing to note that on this occasion we failed to meet the customer's expectations
when a problem arose. The issue surrounding the poor customer service has been addressed
and I am confident that in the unlikely event of this issue re-occurring, our store team will be
able to handle it in a far more appropriate manner.
We would be more than happy to reimburse the customer for the product concerned and for
the inconvenience we may have caused her."


The Complaints Board perused the relevant correspondence and the advertisement. The
Complainant said that the mosquito net pictured was superior to the one for sale in the shop at
the price advertised. Accordingly, in the Complainant’s view the advertisement was

The Chairman directed the Complaints Board to consider the complaint with reference to
Rule 2 of the Code of Ethics.

The Complaints Board noted the Advertiser’s explanation that the photograph used in the
brochure was a “generic” photograph of the product which in their terms was “a fair
representation” of the product. However, the Complaints Board said that in that circumstance
the advertisement was required to carry a disclaimer clarifying that situation to the consumer.

Furthermore it noted that a similar issue had arisen in Complaint 03/132, concerning the same
advertiser. That Decision said:

     “Complaint: The Bed Bath & Beyond Linen for Less brochure advertisement
     showed a toweling-type bathrobe reduced for sale at $19.90.

     The Complainant said: " ... When I went into one of the stores ... I found only
     thin toweling robes that did not look anything like the one in the picture - there
     were no double cuffs or rolled collar. When I inquired with a staff member and
     showed her the brochure, I was informed that the one shown in the brochure
     was a more expensive bathrobe that they had been selling .... "

     The Advertiser, Bed, Bath & Beyond, subsequently advised the Complaints
     Board that the wrong photo had inadvertently been used and "To ensure the error
     does not happen again we have introduced a numerically referenced cataloguing
     system, which means we will refer to images by a number, rather than a
     description, which is subject to interpretation…”.

In that instance the Chairman had ruled that the complaint was Settled.

The Complaints Board said that the Advertiser, Bed, Bath & Beyond had been made fully
aware of the importance of depicting a product for sale in an accurate manner. It was also its
view that a numerically referenced catalogue system should have eliminated the problem, the
subject of the present complaint.

The Complaints Board then referred to a legal precedent, the Bongo Van case, where the
New Zealand Herald had pictured a second hand van which had not been the actual van for
sale. The Commerce Commission had prosecuted the New Zealand Herald who had then
attempted to plead that they had been unaware that the picture was inaccurate. This was not
acceptable to the Commerce Commission.

Taking all of the above into account the Complaints Board was unanimously of the view that
the Bed Bath & Beyond advertisement before it was misleading and in breach of Rule 2 of
the Code of Ethics.

The Complaints Board ruled to Uphold the Complaint.

Decision: Complaint Upheld

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