Ad description
A direct mailing from Racing UK Ltd, a subscription TV channel received in March 2012, promoted coverage of the Cheltenham Festival. The front of the envelope showed a table with four columns, three of which were headed "COL", "CODE", "DATE" and "CONS" along with the recipient's details and a return address for Racing UK. The back of the envelope included the text "XRAY FILMS HANDLE WITH CARE" and "Name WALSH Ruby D.O.B 14.07.79 Consultant Mr Luck". An image in the style of an X-ray showed a heart with the advertiser's "R" logo inside it, which was labelled "Name: WALSH, Ruby Date 13.03.12" and handwritten style text on a Post-It note stated "Call now to discuss your prescription". Another part of the mailing was headed "Medical Notes," and "The Cheltenham Jockeys Facility Pre Festival check up". The same person's details were written at the top of the page, which also stated they were Irish and listed their Professional capacity as "Jump jockey". Further text stated "Mr Walsh, like a number of cases we have seen recently, is suffering from nervous tension and over excitement - common symptoms at this time of year as we head towards the Cheltenham Festival". A list of symptoms stated "Excitable, Tense, Heart palpitations, Jumpy, Distracted". Under the heading "Diagnosis" text stated "Mr Walsh's chest X-rays reveal that Racing UK is at the heart of the Cheltenham Festival experience. To ease symptoms as the Festival draws near, urgent action is required. Under the heading "Proposed Treatment" text stated "To relieve symptoms immediately, we recommend joining Racing UK to get the Cheltenham Festival running through your veins. As the ONLY CHANNEL SHOWING ALL 27 RACES, including 7 exclusive, it really puts you at the heart of the festival".
Issue
Six complainants challenged whether the ad made sufficiently clear it was marketing material and whether it was likely to cause undue distress.
Response
Racing UK Ltd (Racing UK) stated that the ad related to the upcoming Cheltenham Festival, which was the biggest and most famous event of the horseracing calendar and that Racing UK was the only TV channel that showed every race live. They stated that the extensive coverage resulted in the 2012 Cheltenham campaign developing the strap line "at the heart of the festival", with the 'call to action' strap line "don't miss a beat" and that to bring this all to light, their marketing was linked to anatomical references and feelings of anticipation and excitement.
They stated that the campaign as a whole was headed up by their sponsored jockey, Ruby Walsh, and said that he was one of the most famous Jumps Jockeys currently riding and was synonymous with the Cheltenham festival. They stated that their 'above the line' marketing focused on Ruby Walsh holding an X-Ray across his torso with the blue heart the brand 'R' embedded. They explained that the purpose of this marketing was to link Racing UK with being at the heart of the Cheltenham festival.
They stated that the direct mail ad was designed to complement the other marketing material and comprised of an X-ray of a blue heart with the Racing UK 'R' visible within it. They said that this was accompanied by a sheet of invented and "tongue-in-cheek" medical notes which were clearly labelled for Ruby Walsh and which were in no way intended to confuse.
They stated that all of the recipients of the mailing were customers who had either previously subscribed (recently lapsed) to the Racing UK product or else were racing fans who had interacted with their brand having either received newsletters, entered competitions or used features on their website. They therefore believed it had been a carefully targeted mailing to individuals who were likely to have a strong interest in their offer.
They believed that anyone with even a low level of racing knowledge would be able to identify Ruby Walsh as an iconic Jumps legend and that, as people who had interacted with their brand, recipients of the mailing would have a strong awareness of him. They further believed that recipients would quickly realise the faux nature of the medical notes and that recipients would be aware that the contents were linked to their current marketing campaign. They believed that the positive response to the mailing and the feedback they had received suggested that it had not caused any harm or offence to a number of recipients.
They stated that the intention of the mail pack was purely to create impact and that whilst they acknowledged the pack elements were realistic at first glance, they believed the targeted recipients would quickly realise it was marketing material that therefore it should be viewed within context of the ongoing Ruby Walsh and Cheltenham festival marketing context.
Assessment
Upheld
The ASA noted Racing UK had developed the idea of the mailing by linking feelings of anticipation about the Cheltenham Festival to the marketing strap line that Racing UK was "at the heart" of the event. We also noted the mailing had been sent to people who had previously interacted with the brand and who were likely to be aware of the event and of the jumps jockey Ruby Walsh. However, we considered that Racing UK had not demonstrated that all recipients of the ad were actively aware of the current "at the heart of the festival" marketing campaign and would have therefore interpreted the mailing in that context.
We noted the envelope in which the mailing was received featured a table with columns that were headed "COL", "CODE", "DATE" and "CONS" and that text above the recipient address stated "If undelivered please return to: Racing UK" (followed by the return address). We further noted the envelope contained the text "XRAY FILMS HANDLE WITH CARE" and that it featured a box which included space for the name, date of birth and a consultant name and that it had been completed with the patient name "Ruby Walsh". We considered that the envelope did not make clear that the contents were marketing material and that recipients may have understood from the presentation that the envelope contained some sort of official documentation. We noted this envelope contained what appeared to be an X-ray film of a heart which was presented on a tinted, see-through plastic A4-sized sheet and considered that some recipients would, upon first glance, believe that it was a genuine X-ray film.
We noted the X-ray included an image of the letter "R" but considered that this was not presented in such a way that it was a clear piece of Racing UK branding. We also noted the envelope included a Post-it note which stated "Call now to discuss your prescription" and considered that within the context of the mailing, this was likely to be interpreted as an urgent call to action regarding the contents of the envelope. Finally, we noted the envelope contained a sheet of paper titled "Medical notes" which included references to both symptoms of heart-related medical conditions alongside references to the upcoming Cheltenham festival (including information about the TV channels on which Racing UK was available).
We considered that upon close inspection of the Medical Notes element of the ad recipients would understand that the mailing was a piece of marketing material for Racing UK's coverage of the Cheltenham Festival. However, whilst we noted Ruby Walsh was likely to be well known to those who followed racing, we considered that it was not clear from the X-ray and the envelope (where his name appeared as the patient name) that these elements of the mailing were actually a mock-up of medical records. We therefore considered that the Post-it note, X-ray and envelope were presented in such a realistic way that upon first glance, some recipients would assume that they were genuine medical documents.
Whilst we considered that recipients of the mailing who were familiar with the campaign or who closely examined the contents would be likely to have recognised the mailing as marketing material, we noted some complainants had reported that they had been expecting medical records and therefore immediately assumed that the contents referred to them, the recipient. We considered that, if recipients did not immediately realise the contents of the mailing were marketing materials, the seriousness of the reference to the heart as the subject of the medical documents was such that it was likely to cause significant distress. We concluded that the ad did not make clear that it was a piece of marketing material and that, because of the realistic presentation of the medical records enclosed, the ad was likely to cause undue distress to some recipients.
The ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing material) and 4.2 4.2 Marketing communications must not cause fear or distress without justifiable reason; if it can be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention. (Harm and offence).
Action
The ad must not appear again in its current form. We told Racing UK to take care that marketing material was easily recognisable as such.
