Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A direct mailing promoted a horse racing tipster service. The ad stated "Over the past 6 months we have enjoyed 108 betting days, from which we made profits on 76 occasions. That's a profit strike rate of 70.3% ... Let me stress once again over the past 6 months we have enjoyed 108 betting days, from which we made profits on 76 occasions. That's a profit strike rate of 70.3%". A list of winning bets was included beneath this text. The ad also featured numerous positive testimonials.
Issue
The complainant challenged whether:
1. the claimed 70.3% profit strike rate could be substantiated; and
2. the testimonials quoted in the ad were genuine.
Response
1. & 2. Eclipse Consortium did not respond to the ASA's enquiries.
Assessment
1. & 2. Upheld
The ASA was concerned by Eclipse Consortium's lack of substantive response and apparent disregard for the Code, which was a breach of CAP Code clause 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded them of their responsibility to provide a substantive response to our enquiries and told them to do so in future.
Because we had not seen evidence to support the profit strike rate quoted in the mailing or to show that the testimonials were genuine, we concluded that the claims of a 70.3% profit strike rate and the testimonials featured in the mailing were misleading.
The ad breached CAP Code (Edition 12) rules 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay), 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 3.45 3.45 Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it. and 3.47 3.47 Claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer. (Endorsements and testimonials).
Action
The ad must not appear again in its current form. We referred the matter to CAP's Compliance team.
