Background
Summary of Council decision:
Two issues were investigated both of which were Upheld.
Ad description
A prize promotion, sent by e-mail to entrants to a competition in the November 2012 edition of Evo magazine, was received on 10 February, offering a racing tuition prize. It stated "Congratulations [name] you have won one of our runners up prizes! A FREE TUITION SESSION WITH EX F1 DRIVER IAN ASHLEY AND THE TEAM As a runner up you will be coached on how to drive like a professional racing driver" and set out what the session would involve. Text continued "The session will run from MIRA's secret Test facility in Nuneaton ... To claim your exclusive tuition session please contacts our booking team on 01XXX XXXXXX or simply fill in our contact form by selecting the link below ... We look forward to seeing you in 2013".
Issue
The complainant challenged whether:
1. the ad was misleading and had been administered properly because, on contacting Supercar Lifestyle to claim the runners up prize he was informed that an insurance payment of £199 would be required in order to claim the prize, which was not stated in the terms and conditions; and.
2. the runners up prize offered was a genuine prize, because he believed it had been offered to all remaining entrants.
Response
1. & 2. Supercar Lifestyle Ltd (Supercar Lifestyle) said they had run a legitimate competition in conjunction with Evo magazine (Dennis Publishing), which had been published in Evo in November 2012, where the prize was to "WIN A DAY'S TUITION FROM FORMULA 1 VETERANS IN A 535BHP GT3 SPLC SPORTSCAR". They said they had named the first prize winner, who had booked his day's tuition for June 2013.
They pointed out the e-mail had stated that terms and conditions applied and the competition was subject to liability and registration. They said the tuition was free of charge, Supercar Lifestyle were paying for the track time, ex F1 instructor fee, fuel, vehicle maintenance and refreshments. They said the applicable fee covered any damage to vehicles, damage to the circuit and personal injury cover whilst the client was in control of the car.
They said four clients had attended the event and the feedback was excellent. They said they could provide the testimonials. They said there had been some negative information on a web forum, but the majority of forum posts had come from people who had not spoken with Supercar Lifestyle or entered the competition.
Assessment
1. Upheld
The ASA noted that an ad in the November 2012 edition of Evo magazine had promoted a competition to "WIN A DAY'S TUITION FROM FORMULA 1 VETERANS IN A 535BHP GT3 SPLC SPORTSCAR" and that that magazine ad had stated "There's one prize up for grabs". We noted that that competition was run by Supercar Lifestyle in conjunction with the publishers, Dennis Publishing Ltd. We consulted Dennis Publishing Ltd and understood that, after that competition was over and the winner had claimed the prize, Supercar Lifestyle had decided to run a second competition, which was detailed in the e-mail ad under investigation, and which was addressed to all remaining participants in the original competition. We noted that Dennis Publishing Ltd maintained that they had not been aware of that second competition and the e-mail had been sent to all participants of the original competition by Supercar Lifestyle without their knowledge. We also understood that there was no runners up prize agreed in the original competition.
We noted that the e-mail stated "Congratulations [name] you have won one of our runners up prizes!". However, we had not seen any documentation showing how the advertisers had selected the runners up or had ensured that the completion was genuine. We therefore considered that, in the absence of supporting documentation, the "FREE TUITION SESSION" offered in the e-mail was not a genuine competition prize, on the basis that it had been offered to all participants in the original competition and had not been won by selected runners up.
We therefore considered that the e-mail was promoting a free tuition session to all original participants, for which we noted there was a £199 insurance fee, and, because we had not seen any supporting documentation showing that the free tuition session had been offered to selected runners up as a prize, we concluded that the prize was not a genuine prize and the ad was misleading on that basis.
On that point, the promotion 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),
8.1
8.1
Promoters are responsible for all aspects and all stages of their promotions.
(Sales promotions),
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
(Significant conditions for promotions),
8.19
8.19
Promoters must not claim that consumers have won a prize if they have not. The distinction between prizes and gifts, or equivalent benefits, must always be clear. Ordinarily, consumers may expect an item offered to a significant proportion of participants to be described as a ‘gift’, while an item offered to a small minority may be more likely to be described as a ‘prize’. If a promotion offers a gift to a significant proportion and a prize to a minority, special care is needed to avoid confusing the two: the promotion must, for example, state clearly that consumers “qualify” for the gift but have merely an opportunity to win the prize. If a promotion includes, in a list of prizes, a gift for which consumers have qualified, the promoter must distinguish clearly between the two.
8.20
8.20
Promoters must not exaggerate consumers' chances of winning prizes. They must not include a consumer who has been awarded a gift in a list of prize winners.
and
8.21
8.21
Promoters must not claim or imply that consumers are luckier than they are. They must not use terms such as "finalist" or "final stage" in a way that implies that consumers have progressed, by chance or skill, to an advanced stage of a promotion if they have not.
(Prize promotions).
2. Upheld
We understood that the insurance payment of £199 would cover driving tuition sessions for a period of 12 months. We noted that the insurance fee was to cover any damage to vehicles, damage to the circuit and personal injury cover whilst the client was in control of the car. We acknowledged that insurance coverage was required to take part in the tuition session and considered that having insurance, and therefore paying the insurance fee, was a significant condition of the promotion and the fee should therefore have been made clear to consumers and should have been set out in the e-mail. Because we noted that that information was not included in the ad, we concluded that the promotion was misleading.
On that point, the promotion 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),
8.1
8.1
Promoters are responsible for all aspects and all stages of their promotions.
(Sales promotions),
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
(Significant conditions for promotions) and
8.21.1
8.21.1
Promoters must not falsely claim or imply that the consumer has already won, will win or will on doing a particular act win a prize (or other equivalent benefit) if the consumer must incur a cost to claim the prize (or other equivalent benefit) or if the prize (or other equivalent benefit) does not exist.
(Prize promotions).
Action
The claims must not appear again in their current form. We told the advertisers to ensure their competitions offered genuine prizes, in line with the requirements of the CAP Code and that all significant conditions of the offer were clear to consumers.
CAP Code (Edition 12)
3.1 3.3 8.1 8.17.1 8.19 8.20 8.21 8.21.1
