Ad description
Two direct mailings from an optician to a member of the public sent in June 2011:
a. An e-mail, was headed "Half Price - Laser Eye Surgery Now £1,995 For Both Eyes + 1 Year's Interest Free Credit". Text below stated "Save money and enjoy life without glasses. You could start saving on glasses and lenses now. £1,995 For Both Eyes. Up to Half Price until 31st August 2011 ... Your offer is Optimax's most advanced treatment option - Intralase Wavefront LASIK - up to half price when you have treatment before 31st August 2011 ... Your vision could be immediately improved with full recovery measured in hours not days - in fact you could be back at work the next day ...".
b. A letter, was headed "Half Price - Laser Eye Surgery Was £3,990 Now £1,995 You Save up to £1,995 (50% OFF)". Text below stated "Optimax invites you to take advantage of this Special Summer Half Price offer. Your special offer is for Optimax's most advanced treatment option - Intralase Wavefront LASIK - up to have price when you have both eyes treated before the 31st August 2011 ... £1,995 For Both Eyes. Save up to £1,995 (50% OFF) until 31st August 2011... Your vision could be immediately improved with full recovery measured in hours not days - in fact you could be back at work the next day...".
Issue
Optical Express Ltd challenged whether the claims "Half Price" in ads (a) and (b), and "50% OFF" in ad (b):
1. were misleading because they did not contain the qualification "up to";
2. were misleading because they did not make clear the basis of the claim or state whether the claim was a comparison against other advertisers;
3. could be substantiated;
4. the claim "Was £3,990" in ad (b) was misleading and could be substantiated; and
5. the claim "full recovery measured in hours not days" in both ads was misleading and could be substantiated.
Response
1. Optimax disagreed with Optical Express that the claims "Half Price" and "50% OFF" were misleading because they did not contain the qualification "up to". They explained that offer allowed customers to save up to 50% of their normal treatment prices, based on their prescription level. Customers with a very high prescription (i.e. -3.75 or above) would save 50% whereas customers with a mild, moderate or high prescription would save less than 50%. Optimax pointed out that the qualification "up to" was featured in the header of ad (b) and was featured more than once in ads (a) and (b).
2. Optimax said that because there were no references to other advertisers in ads (a) or (b) no comparative judgement had been made. They did not believe that any implied reference to other advertisers was made by omission. They did not believe ads (a) or (b) were misleading as they merely offered a saving of up to 50% off their own treatment costs and contained appropriate terms and conditions.
3. & 4. Optimax believed Optical Express had offered no basis upon which to query their prices. They explained that the maximum saving was 50% and this was for the highest prescription option. They said that the normal price of treatment for a customer with a very high prescription was £3,990 for both eyes and provided a breakdown of how that price was calculated. They explained that the offer price was £1,995 for both eyes for all prescription levels. Therefore the maximum saving was £1,995 which equated to 50% off for the highest prescription level. They provided a price list dated 1 January to 31 October 2011 showing their normal prices.
5. Optimax pointed out that the claim was qualified with the words "could be" and did not suggest that all patients would achieve such rapid improvements to their vision. They did not believe a reader would be likely to conclude otherwise. They said the claim was based on feedback from their patients and provided a spreadsheet summarising the results of a patient survey. They also provided a copy of the "Questions & Answers" section of their website which contained answers to questions such as "What will my eyes look like after surgery?", "When can I drive?" and "When can I play sport?".
Assessment
1. Upheld
The ASA understood that 50% off was the maximum saving and this was only available to those customers with the highest prescription level, and that customers with lower prescriptions would save less than 50% on the normal treatment price. We noted that the headline in ad (b) contained the claim "You Save up to £1,995 ..." and considered that although the headline contained the qualification "up to" in relation to the amount of money that would be saved, it did not contain the qualification "up to" in relation to the claims "50% OFF" and "Half Price". In relation to ad (a), we noted that the "Half Price" claim in the main body of the e-mail was qualified with "up to" whereas the "Half Price" claim in the headline was unqualified. We therefore concluded that the claims "Half Price" in ads (a) and (b), and "50% OFF" in ad (b) could cause confusion as to whether Optimax offered a half price deal or 'up to' half price deal. We considered that the claims were misleading and that they should have been consistently qualified with the words "up to" throughout the ads.
On this point, ads (a) and (b) breached 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) and
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices).
2. Not upheld
We noted that the reduction was on Optimax's own prices and that ad (b) included the text "Was £3,990". We considered that consumers would assume that the reduction was on Optimax's own prices and we noted that this was the case. We agreed with Optimax that the claims did not imply the reduced prices were half the price of Optimax's competitors' prices. We therefore concluded that the claims did not mislead on this basis.
On this point, we investigated ads (a) and (b) 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),
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices),
3.38
3.38
Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage.
(Other comparisons),
3.39
3.39
Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises.
and
3.40
3.40
Price comparisons must not mislead by falsely claiming a price advantage. Comparisons with a recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold.
(Price comparisons) but did not find them in breach.
3. & 4. Not upheld
We considered the price list provided by Optimax. We noted that the normal cost of the Intralase Wavefront LASIK treatment for both eyes was £3,990 for customers with a very high prescription (-3.75 or above). We also noted that the sale price for the Intralase Wavefront LASIK treatment was £1,995 for both eyes regardless of the customer's prescription and that this represented 50% off the normal price of the treatment for customers with a very high prescription. We noted that this was the maximum saving that could be made and that customers with lower prescriptions would save less than 50% of the normal treatment price. We considered that Optimax had substantiated the claim "Was £3,990" in ad (b) and the claims "Half Price" in ads (a) and (b) and "50% OFF" in ad (b) in relation to treatment for the highest prescription level and considered that the claims were not misleading on this basis.
On this point, we investigated ads (a) and (b) 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),
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) and
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices) but did not find them in breach.
5. Not upheld
We noted the claim was preceded by the word "could" and agreed with Optimax that customers would not assume that this recovery time would be possible in every case. According to the results of the patient survey, the majority of patients reported they could see well and their eyes were functioning as normal later on the same day as treatment or the following day. The majority of patients reported they could have gone back to work the day after treatment if it was necessary. A significant proportion of patients reported they could have resumed driving the day following treatment. We noted that the "Questions & Answers" section of Optimax's website advised that for patients who had LASIK treatment, the treated eye would look normal the day after surgery, except for some slight redness and that patients could expect to resume driving within 12 to 48 hours after surgery. It also listed the activities to be avoided following surgery for at least one week and these were limited to certain sports. We considered that because it was clear that full recovery could be measured in hours for some patients but not everyone, and because we had seen evidence to suggest that a significant proportion of patients had reported feeling able to resume work and driving the day of the surgery or the following day, the claim had been substantiated and was not misleading.
On this point, we investigated ads (a) and (b) 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) and
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) but did not find them in breach.
Action
The ads must not appear again in their current form. We told Optimax to ensure that savings claims are suitably qualified in future ads.
CAP Code (Edition 12)
3.1 3.17 3.3 3.38 3.39 3.40 3.7
