Background
Summary of Council decision:
Two issues were investigated, one of which was Not upheld and the other was Upheld.
Ad description
A national press ad, which appeared on 3 February 2011, featured a word search puzzle and invited readers to identify which word from each list was missing from the word search puzzle grid and call a number with their answer. It stated "Lucky Four-Leaf Clover Emerald Brooch ... Solve the puzzle to claim yours today!". Text underneath the headline stated "... To promote Spencer and Mayfair Jewellery to readers of this publication we are delighted to have sourced our most prized item to date: Genuine Lucky Four-Leaf Clover Emerald Brooches. These genuine Emerald Brooches ... are guaranteed to be received by all callers who register a correct answer to the puzzle shown here, by Midnight Tonight. There is no more to it than that! ... Should you solve the puzzle then call the number shown straight away. We will tell you whether you have the correct answer and are successful!". At the bottom of the ad, text stated "REGISTER CORRECT ANSWERS BEFORE MIDNIGHT TONIGHT AND WE WILL AWARD YOU WITH A LUCKY CLOVER EMERALD BROOCH. CALL NOW 0906 [xxx xxxx]*".
Small print at the bottom of the ad stated "*Calls last for just 5 mins 45 secs. Calls cost £1.53 a minute from a BT landline. Calls from other networks may vary ... Calls from a mobile phone or a public payphone cost considerably more. This is a skill competition open to UK residents ... Correct entries will be acknowledged on the phone line ... At the end of the call you will be asked if you wish to be transferred to another phone line to receive matching earrings. If you do choose to do so the second call will last 2 minutes and 55 seconds at a cost of £1.53 per minute".
Issue
A reader challenged whether the ad:
1. was misleading because it did not state the minimum total cost of calling the premium rate number; and
2. misleadingly implied that the brooch was an award, when he understood that consumers were in fact buying the brooch.
Response
1. Churchcastle Ltd said the ad clearly stated that calls lasted for 5 minutes and 45 seconds and that calls cost £1.53 a minute from BT landlines. They believed that wording followed the guidance issued by PhonepayPlus at that time. They said that PhonepayPlus recommended that format because it was not possible to confirm the precise cost of calling a premium rate service (PRS) number from each and every network available. They believed consumers were able to calculate the cost of any 'network extras' which might apply if they did not call from a BT landline. They said consumers were directly led to the cost information by the asterisk after the number and could easily find out how much the call would cost. Correct callers stayed on the line to be asked if they wanted to be transferred to buy the matching earrings; those calls lasted longer than the 5 minutes 45 seconds. Incorrect callers did not stay on the line for the full 5 minutes and 45 seconds and therefore, experienced shorter call durations.
2. Churchcastle did not believe that CAP Code rule 8.21.1 (Prize promotions) applied to the ad because it did not describe the brooch as 'free' or as a 'gift'. They believed it was a prize competition as the brooch was an incentive or reward for consumers and that only those consumers who entered the competition and registered a correct answer would receive the brooch.
They believed that only when all callers received the brooch, consumers would, in effect, be buying that brooch. Churchcastle said that was not the case with their ad and provided the number of correct callers and explained that the remaining callers were either incorrect or did not stay on the line long enough to submit their answer. They said that the PRS call cost was for entry and had nothing to do with the cost or value of the brooch and paying for the call did not entitle consumers to receive the brooch. They said that they were unable to identify the cost (to them) of purchasing the brooches because they would have been part of far wider purchases from the same suppliers. Although the PRS number was a revenue sharing service, the primary intention of the promotion was to collate data from competition entrants and not to make an instant profit from the ad itself.
Churchcastle said the ad was constructed in line with the Gambling Act's definition of a skill competition which permitted using a PRS number to charge for entry to the competition. The cost of the call allowed consumers to enter the competition but paying for that call did not entitle consumers to receive the brooch.
Churchcastle said they sought Copy Advice on a number of occasions and believed they had followed and amended their advertising in line with that advice.
Assessment
THIS ADJUDICATION REPLACES THAT PUBLISHED ON 19 DECEMBER 2012. THE WORDING OF POINT 2 HAS CHANGED BUT THE DECISION TO UPHOLD REMAINS.
1. Not upheld
The footnote stated the exact call duration, the cost of the call per minute from a BT landline and that calls would cost more when made using a mobile phone or a public payphone. The ASA noted further that the presentation of the call-cost information complied with PhonepayPlus' requirements at the time the ad was published. While the footnote was in small print and did not state a minimum total cost, we considered that the information was clear and legible, and allowed BT consumers to calculate the total cost of their call 5 minutes 45 seconds (at £8.80) and gave enough information for non-BT customers to know that it would cost more.
On this point, we investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications 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) but did not find it in breach.
2. Upheld
We noted Churchcastle had sought Copy Advice but also that it was sought before the Code clause 35.11 was introduced in Edition 11 of the CAP Code, now 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. in Edition 12. We noted Churchcastle's view that the rule did not apply to their promotion and that it only applied to promotions where everyone received the award. However, we considered that the ad was a prize promotion as defined by the CAP Help Note on Promotions with Prizes and we were therefore satisfied the ad was subject to Code rule 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).
The rule, which reflected prohibited practice 31 in the Consumer Protection from Unfair Trading Regulations 2008, stated that ads must not falsely claim or imply that a consumer, on doing a particular act, would win a prize or equivalent benefit, if a cost were to be incurred by the consumer in claiming that prize or equivalent benefit. In this case, we considered the brooch was an award and therefore, was an equivalent benefit for the purposes of the rule.
We considered claims such as "claim yours today", "guaranteed to be received by all callers who register a correct answer" and "we will award you" conveyed the impression that callers who had completed the act of correctly solving the word search puzzle would qualify for the brooch. Consumers who stayed on the line long enough to submit an answer incurred a cost of £8.80 from a BT landline (more if they also sought to receive matching earrings) and those calling from mobile phones or a payphone incurred a greater charge.
While the ad set out the cost which would be incurred by consumers in a way that we considered was unlikely to mislead, the Code nevertheless prohibited promotions where consumers incurred a cost to claim a prize or equivalent benefit. In this case, the only way for correct callers to claim their benefit was at the end of a call to a PRS number, having been told they were correct and having already incurred a cost of at least £8.80. Because correct callers incurred a cost to claim their brooch, we considered that cost falsified the impression created by the ad that they would qualify for the brooch and we therefore concluded the ad breached the Code.
The ad breached CAP Code (Edition 12) rule 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 ad must no longer appear. We told Churchcastle not to advertise promotions with prizes where consumers had to incur a cost to claim the award.
