The National Advertising Division of BBB National Programs (NAD) recently issued a final decision in a competitive challenge brought by Ahold Delhaize USA against Lidl US, LLC concerning Lidl’s comparative grocery price advertising. 

The challenged ads included statements such as “Save over 30% on the exact same basket when shopping at Lidl versus Stop & Shop,” “Save up to $28 on the exact same basket when shopping at Lidl vs. Giant,” and “Skip Food Lion. Save $27.” 

Comparative Pricing Claims Generally

A major focus of the decision was the timing of Lidl’s price comparisons. Ahold submitted evidence that its grocery prices change weekly across thousands of SKUs. Lidl countered that its own prices are relatively stable and that it disclosed the date of comparison in its ads.

NAD concluded that seven days is a reasonable maximum period for grocery price comparisons when the competitor updates prices weekly. Although Lidl’s comparisons were generally accurate on the date collected, NAD found that some competitor prices had already changed by the time Lidl’s ads were running, making the savings claims stale. 

NAD also found that Lidl’s date-of-comparison disclosures were not sufficient because they were not always present, were sometimes difficult to read and could not override the dominant message that consumers could “presently” save 25 to 30%. As a result, NAD recommended that Lidl discontinue its price comparison claims unless they are based on competitor price checks within seven days and include a clear and conspicuous disclosure of the basis and date of comparison. 

Loyalty Pricing 

Another key issue was whether Lidl’s comparisons improperly ignored competitors’ loyalty program prices. Ahold showed that the majority of its customers receive discounted prices through free loyalty programs at Stop & Shop, Food Lion and Giant. NAD found that customers accustomed to those discounted prices could reasonably assume that comparisons reflected what they actually pay at checkout.

NAD therefore ruled that Lidl must disclose whether its comparisons are to competitors’ base prices or to discounted loyalty prices, because that distinction is material to consumers’ understanding of the claimed savings. 

“Exact Same Basket” Claims

NAD drew a bright line on Lidl’s “exact same basket” language. Lidl compared its private-label products to national brands sold by Ahold banners and also compared items of different weights and quantities. NAD held that the phrase “exact same” conveys that the products are identical, not merely comparable. Because they were not, NAD ordered Lidl to discontinue all claims using that phrase.