Ad description
A website www.no2surge.co.uk for a pre-workout pill stated, "NO2 SURGE … GET YOUR TRIAL NOW", and included a form with the text "TELL US WHERE TO SEND YOUR TRIAL BOTTLE". The form required consumers to enter their contact details and tick a box to receive their trial order. Next to the tick box, text stated "I confirm that I am over 18 and agree to the Terms & Conditions of this site". The text "Terms and Conditions" was linked to a pop-up box, which listed the terms and conditions. Underneath that text, a button stated "ORDER NOW".
The terms and conditions included text which stated "By submitting your billing information and order, you are agreeing to the terms and conditions of the 14-day trial … The 14 day trial period starts when you place your order and may be cancelled by phone at 0844 248 1894 … You will be responsible to pay the Shipping and Handling charges for your first shipment and that is the amount billed to start the trial. The cost of the product is £79.97 and you will be billed that price for the initial product sent out and the access to the website if you do not cancel before your 14 day trial has ended. If after your 14-day trial period you wish to continue to receive our product, simply do not cancel, and in approximately 30 days and continuing every 30 days thereafter, you'll be shipped out a 30 day supply of No2surge for the full price. If you wish to cancel your order before the 14 day trial has ended, contact us by phone at 0844 248 1894 and return the product back to us at your expense and you will not be billed anything further. Unless you contact our customer care department at 0844 248 1894 to cancel your monthly subscription, you will continue to receive product every month and be billed the full price for it. You will be billed 79.97 pounds every month and receive product every month until cancellation. Your request for cancellation, whether by phone or email, will be processed immediately. You may cancel at anytime via our customer service phone number and you may submit a request of cancellation by email to [email protected]. All cancellation requests whether by email or by phone should receive a cancellation number and an email stating your subscription has been cancelled. You must keep this cancellation number or email for your records that you have been cancelled.
At the bottom of the page, the same order form was shown along with the text "GET YOUR BOTTLE NOW!" The page footer also included text that stated "Terms and Conditions", which linked to a pop-up box listing the terms and conditions.
Clicking on the "ORDER NOW" button from both forms, took the website user to the next stage of ordering their trial. The web page showed a picture of the product with the text "No2 Surge £0.00. Subtotal: £0.00. Shipping and Handling: £4.95. Insurance Fee: £2.00. Total: £6.95". Below this further text stated "… When you place your initial order by checking that you agree to the terms and clicking the Send My Trial! button, we will send you 1 bottle (a 30 day supply) of our product, and your credit card provided today will be charged £4.95(GBP) for Shipping & Handling. As well as £2.00 for InsureShip. Approximately 14 days later you will be billed £79.97(GBP), and every thirty days thereafter, you will be charged £79.97(GBP) and automatically receive an additional 30 day supply of our product. Cancel your 14- day trial at any time by calling 0844 248 1894 during regular business hours".
The web page included another form, with text stating "FINAL STEP! YOUR PAYMENT TO PROCESS YOUR TRIAL", and required consumers to enter their credit card information. At the bottom of the form were two tick boxes, with text stating "Yes I agree to the Recurring Billing System" and "Yes I am 18 years and older and agree to the Terms & Conditions". The text "Terms and Conditions" was linked to a pop-up box, which disclosed the full terms and conditions. Underneath that text there was a button with text that stated "RUSH MY TRIAL".
Issue
The complainant challenged whether the ad was misleading, because it did not make clear that significant conditions applied to the promotion, particularly the condition that consumers had to cancel their trial within 14 days or be charged £79.97 and be automatically enrolled into receiving a monthly supply of the product at the cost of £79.97per month.
Response
Body Massco Ltd did not respond to the ASA's enquiries.
Assessment
Upheld
The ASA was concerned by Body Massco's lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquires and told them to do so in future.
We considered the prominent claims such as "GET YOUR TRIAL NOW" and "TELL US WHERE TO SEND YOUR TRIAL BOTTLE" would be understood by consumers to mean that they were signing up only to receive a trial bottle of the product, for which they would not be charged. We noted that the terms and conditions pop-up box included information about the charges that would be incurred if consumers did not cancel and return the product within 14 days. We considered that this information constituted significant conditions that were likely to influence consumers' decisions and understanding of the promotion and which, therefore, should have been presented clearly to consumers.
While we acknowledged that consumers had to agree to the "Recurring Billing System" by clicking on the tick box on the payment page, we noted that it was not included in the order form that was initially shown on Body Massco's home page. Furthermore, we considered that it did not explicitly explain the condition that if consumers did not cancel their trial and return the product within 14 days, they would be charged £79.97 and be automatically enrolled into receiving a monthly supply of the product at the cost of £79.97p per month. Therefore, we concluded the ad was misleading.
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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification),
8.2
8.2
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
(Sales Promotions) and
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
(Sales Promotions - Significant Conditions for Promotions).
Action
The ad must not appear again in its current form. We told Body Massco to ensure significant terms and conditions were clearly stated in their advertising and to conduct their promotions equitably, promptly and efficiently and deal fairly and honourably with participants. We referred the matter to CAP's Compliance team.
