Ad description
A website for skincare products, viewed in September 2011, which offered a free trial of an anti-wrinkle serum stated "BEAUTY WITHOUT BOTOX 42% Decrease in Fine Line and Wrinkles, 36% Increase in Skin Moisturization [sic], 28% Collagen Production Increase ... SATISFACTION 100% GURANTEED. CLAIM YOUR TRIAL PACKAGE NOW! ... Discover why Perfect Radiance is the leading anti-wrinkle serum in the UK ... Claim Your Trial Order". At the bottom of the web page was a link to the terms and conditions, which stated "By placing my order, I agree to the Terms of Offer, which explain that I must cancel within 12 days of today to avoid enrolment [sic] in monthly delivery program, which ships fresh supply and charges the upfront £5.95 for shipment of the product and £74.95 upon the end of the trial period, and subsequently £74.95 monthly thereafter starting from your initial purchase date. You will be charged on same card provided today. All charges will appear as "PerfectSerum" on your credit card statement".
Once the customer had entered their address details and clicked on "SEND MY TRIAL" the next page featured a table set out as an order summary. The product "Perfect Radiance 30-Day Supply Anti-Wrinkle Serum" stated "RISK FREE TRIAL*" in the price column. In the row below, "Shipping & Handling" was listed as "£4.95" and the total stated as "€5.95". Underneath the table text stated "You must pay a shipping and handling fee of £5.95 for us to send your bottle of Perfect Radiance (30-Day Supply) to try risk-free for the 12 day trial. We ship the product the day after your order was placed (except orders placed on Saturday-Sunday will be shipped Monday). If you are unhappy with the product at any time during the 12 days after your initial order was placed, you must call 44(808)168 3685 and cancel your order to avoid being billed for the full cost of the product. If you are satisfied with our product, then do nothing - we will bill you the full product price, £74.95 after the trial period of 12 days has elapsed. To ensure you do not run out of Perfect Radiance and continue enjoying our product, you will receive a new 30-day supply every month. Your credit card will be billed £74.95 every 30 days starting from the date of your original purchase. To cancel automatic delivery and billing, call us at 44(808)168 3685. All charges will appear as "PerfectSerum" on your credit card statement. Please read our full Terms and Conditions for more details".
Issue
1. Two complainants challenged whether the claims "CLAIM YOUR TRIAL PACKAGE NOW", "SEND MY TRIAL" and "RISK FREE TRIAL" and the terms and conditions to the offer were misleading, because they had been unable to cancel their order within the 12 day cancellation period.
The ASA challenged whether the claims:
2. "42% Decrease in Fine Line and Wrinkles, 36% Increase in Skin Moisturization [sic], 28% Collagen Production Increase" was misleading and could be substantiated; and
3. "Perfect Radiance is the leading anti-wrinkle serum in the UK" was misleading and could be substantiated.
Response
1. Perfect Radiance said that they had a very liberal cancellation policy and allowed customers that wanted to cancel within the trial period to do so. They provided the e-mail addresses of four customers that had cancelled their orders within the trial period and four customers that had received refunds.
2. Perfect Radiance acknowledged that the claims regarding the performance of the product were supplied to them by the manufacturing company, who could not provide them with substantiation for the claims. They were willing to remove the percentage figures from the claims. They sent us documentation relating to the ingredients contained in the product which they believed substantiated the positive effects their product had on improving the skin.
3. Perfect Radiance agreed to remove the claim "Perfect Radiance is the leading anti-wrinkle serum in the UK".
Assessment
1. Upheld
We noted Perfect Radiance said they had a very liberal cancellation policy and that the terms and conditions stated that orders could be cancelled within the 12 day trial period. We also noted the complainants had attempted to cancel their orders by telephone and via e-mail within the trial period but neither method had been successful. We noted the e-mail that the complainants received stated they would be charged within ten days and that delivery would take between seven to ten business days, which was different to the details stated in the terms and conditions. Because Perfect Radiance did not provide adequate evidence to demonstrate that a mechanism was in place to enable customers to cancel orders before the end of the trial period and avoid substantial additional charges, we concluded that the ad was misleading.
On this point the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation).
2. Upheld
We noted Perfect Radiance stated that the manufacturing company could not provide substantiation for the claims made regarding the performance of the product. However, we reminded Perfect Radiance that it was their responsibility to ensure they could substantiate the claims. We acknowledged that they provided us with documentation relating to the ingredients contained in the product and noted they were willing to remove the percentage figures from the claims. Nevertheless, because we had not seen any evidence substantiating those claims, we concluded that the claims were misleading.
On this point the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
(Medicines, medical devices, health-related products and beauty products).
3. Upheld
We acknowledged that Perfect Radiance were willing to remove the claim. Because we had not seen any evidence substantiating the claim, we concluded that the ad was misleading.
On this point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
3.38
3.38
Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage.
(Other comparisons).
Action
The ad must not appear again in its current form. We told Perfect Radiance to ensure they held robust documentary evidence to support their claims in future.
