Ad description
A TV and press ad for Paddy Power, seen on 15 March 2016.
a. The TV ad featured an actor who answered a phone that was labelled “Paddy Power COMPLAINTS”. The caller asked, “What’s this I hear about your incredible Cheltenham offer being available to everyone even riff-raff?” The actor replied, “That’s right, it’s one incredible offer.” He then pushed a button which revealed a screen that included the text “MONEY BACK AS A FREE BET 2ND ALL RACES CHELTENHAM” and a voice-over stated, “Money back as a free bet if your horse finishes second in all races at the Cheltenham Festival”. The actor then stated “That’s every single race, every single day.”
b. The press ad stated “MONEY BACK AS A FREE BET IF YOUR HORSE FINISHES 2ND EVERY RACE - EVERY DAY AT CHELTENHAM”.
Issue
The ASA received 12 complaints:
1. eleven of the complainants, who understood that the promotion was not available to some customers, challenged whether ad (a) misleadingly implied the offer was open to everyone; and
2. two of the complainants also challenged whether ad (b) was misleading for the same reason.
Response
1. & 2. Power Leisure Bookmakers Ltd t/a Paddy Power said that the ad made clear the races the offer applied to, and that primary conditions of the offer were clearly visible and prominent. They said the ads included all significant conditions within the on-screen text and small print, which clarified rather than contradicted the main claim. Furthermore, because the ads were limited by space, they also made clear that further terms could be found online or in their shops. Paddy Power said that the full terms and conditions stated “… if there is evidence that a customer is abusing the Offer or using the Offer to guarantee profits regardless of the outcome (whether individually or as part of a group), Paddy Power reserves the right, in its absolute discretion, to reclaim the bonus element of such offer and/or void the Offer”. Paddy Power also said that every promotion that they ran would have a select number of customers who were restricted from redeeming all or part of an offer.
They said that restrictions would be applied where they believed there was a risk of bonus abuse and that related to less than 0.5% of their customer base. Paddy Power said that in advance of any exclusion being applied, they emailed all their customers who were no longer offered promotions, bonuses or enhanced prices to remind them that participating in those elements was restricted. Furthermore, they said that that would be made clear to a customer before a bet was placed if restrictions had been applied. In addition, a customer could click on the ‘maximum’ tab within their bet slip to see if any exclusions had been applied to their betting stake. Paddy Power also said that customers who had reached their allowable betting stake maximum would not receive their email marketing communications.
Clearcast said that, as specified in Paddy Power’s terms and conditions, the only restriction that might have prevented a customer from taking advantage of the promotion, related to a legitimate business concern regarding customers’ abuse of promotions. They said that they did not consider that to be a material condition and it was therefore not required to be stated in the ad, as relevant customers should have already been made aware of that information. They said that while the ad stated “available to everyone”, it was reasonable that ‘everyone’ be construed as extending only to genuine customers who acted appropriately.
Assessment
1. & 2. Upheld (in relation to ad (a) only)
The ASA noted that Paddy Power emailed their customers in advance of any exclusion being applied, to inform them that they were no longer able to participate in promotions, bonuses or enhanced prices and that the proportion of their customers affected was 0.5%. We also noted that the majority of the complainants had stated that they were aware that their accounts had been restricted. We considered that consumers, including those who were either aware or unaware of their account restriction, were likely to understand that terms and conditions were commonly applied to promotions. In that context, we considered the particular restriction was not significant and, as such, that it was acceptable not to specifically reference it in the ads.
The ASA noted that an actor in ad (a) stated, “What’s this I hear about your incredible Cheltenham offer being available to everyone even riff-raff” and that the other actor said in response, “That’s right, it’s one incredible offer” and we considered that consumers were likely to understand that to mean that anyone, without exclusion, could take advantage of the promotion. We also considered that because of the emphasis in ad (a), and the clear statement that the offer was open to “everyone”, the claim was an absolute one, therefore those customers who were restricted were likely to understand that they could participate.
Although we considered the restriction was not significant in itself, in a context where the ad stated that the promotion was open to everyone, whereas that was not the case, we considered the on-screen text “T&Cs apply” was not sufficient to alert consumers to the specific exclusion that applied to restricted customers. We also considered that had the on-screen text referred to consumers who were excluded from taking part in the promotion, that was also unlikely to be sufficient to counteract the misleading impression that the promotion was open to everyone It was, therefore, likely to have contradicted rather than clarified that misleading overall impression.
Because we considered that consumers, including those who were subject to account restrictions, would infer from ad (a) that everyone could take up the promotion, when that was not the case, we concluded it was misleading.
In contrast, we noted the claim “MONEY BACK AS A FREE BET IF YOUR HORSE FINISHED 2ND” in ad (b) and considered that consumers were likely to understand that, as was commonly the case, the promotion had terms and conditions attached. As noted above, because 0.5% of customers with restricted accounts were likely to have been notified of that fact by Paddy Power, they would have been aware that they could not take part in the promotion. We noted that the small print stated “See online and in shops for further details”. In the context of the main claim, and because the restriction was not significant, and so did not need to be specifically referred to in the ad, we considered that that text was sufficient to draw consumers’ attention to the promotion’s terms and conditions, which gave details of the exclusion.
Because customers who had had their accounts restricted were likely to know that fact and therefore it was not necessary to state that in the ad, we concluded ad (b) was not misleading.
Ad (a) breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Misleading advertising) and
3.10
3.10
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification). We investigated ad (b) under CAP Code (Edition 12) rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
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
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification), but did not find it in breach.
Action
Ad (a) must not appear again in its current form. We told Power Leisure Bookmakers Ltd t/a Paddy Power not to state or imply that a promotion was open to everyone if that was not the case. No further action necessary on ad (b).
