Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two direct mailings for a marketing company, ACAI Marketing Ltd:
1. The first mailing, received on 14 March 2017, featured text in large font at the top of the mailing that said "FINAL NOTICE". Text in a smaller font below stated "DEAR [recipient's name] An Unclaimed Reward is being held for you at our main distribution center [sic]. To receive this REWARD please call us now!". The recipient's address was stated in smaller font. Text then stated "WARNING: Failure to call [underlined] will result in an AUTOMATIC FORFEITURE [in bold] of this REWARD [in bold]. Please call at once for details. CALL NOW: [telephone number] [in bold] YOUR CLAIM NUMBER IS: [serial number]". Text in small font in the bottom right corner stated “Return Address: ACAI Marketing, [address]”.
Text on the back of the mailing stated "Our records indicate you have an unclaimed reward on your account. We are holding 7 days Hotel Accomodation [sic] Vouchers [in bold and underlined] in your name as a thank you for completing a recent telephone survey! Please call as soon as possible to claim your Reward”. Text in large font stated “CALL: [telephone number] [in bold and underlined] Calls are FREE from your mobile phone!".
2. The second mailing, received on 12 July 2017, contained the same text as in ad (a), with additional text in smaller font that stated “*to receive your free a gift [sic] a small fee will be required for postage” positioned underneath “YOUR CLAIM NUMBER IS: [serial number]” on the front of the mailing.
Issue
The ASA received two complaints.
1. Both complainants, one of whom also believed that the identity of the advertiser had not been made clear, challenged whether ads (a) and (b) were obviously identifiable as marketing communications and were misleading.
2. One of the complainants, whose elderly mother received ad (b), challenged whether it was likely to cause undue distress.
Response
1. & 2. ACAI Marketing Ltd, who responded through Mango Direct Marketing Ltd, provided further information and documents related to their direct mailing campaign. The information they provided indicated that they purchased recipients’ data from companies who collected data from online shopping or through telephone surveys. Consumers, whose data had been purchased by ACAI Marketing, would be sent an initial mailing which invited them to call a telephone number to claim a ‘free gift’ of hotel accommodation. They pointed out that the direct mailing which the complainants received served as a follow-up mailing if they did not respond to the initial mailing. If the recipients called the telephone number stated on their mailing, they could be given further information about the free gift of vouchers for hotel accommodation, and an offer of 30-day subscription membership trials would be offered. ACAI Marketing said that each caller would receive the hotel vouchers regardless of their decision whether or not to take advantage of the 30-day membership trials. They also provided a copy of the initial mailing; the follow-up mailing which the complainants received; a brochure that included the vouchers, a list of the hotels which recipients could stay at using the vouchers and the terms and conditions of the vouchers; and the covering slip that would be sent along with the vouchers.
ACAI Marketing stated that they felt the use of words in bold and different sizes of fonts were normal marketing tools to ensure that recipients understood the content of the mailing, and the yellow colour of the ads was used to make the recipients take note. They felt strongly that ads (a) and (b) were obviously identifiable as marketing communications and were not misleading. They pointed out that ads (a) and (b) both displayed the company name and return address and felt that the word ‘Marketing’ in their company name also highlighted that the ads were marketing communications. References in the ads, such as “call for your free gift”, the freephone number and “7 days Hotel Accommodation Vouchers”, made clear that the mailings were for a reward and served as a reminder to the initial mailing they would have received; the fact that a customer engaged following receipt of the ads indicated that the ads were successful. They stated that the warnings in the ads were to clarify that if the recipients did not contact them, the gift would be forfeited.
ACAI Marketing also believed that there was no likelihood of ad (b) causing undue distress as it was not threatening and did not make demands for money in any context. They said if an elderly person was reading the ad then it was possible that they might have misunderstood the content of the mailing.
ACAI Marketing said it was possible that the complainants did not recognise their company name as stated at the bottom of the ad, as they worked on behalf of other companies. They were confident that the mailings were identifiable as marketing communications and were in no way likely to cause undue distress. However, they had ceased all mailing activity and were reviewing all materials.
Assessment
1. Upheld
The ASA noted that the claim “FINAL NOTICE” was stated in bold upper case and in the largest font relative to the remaining text in the ad, and was positioned above the name of the recipient at the top of the front of the direct mailing. We considered that this was the most prominent claim in the ad. We also noted that certain wording in the ad was presented in a manner that we considered to be particularly likely to draw recipients’ attention, such as “WARNING” in upper case, “Failure to call” in underlined text, “AUTOMATIC FORFEITURE” in bold upper case, and “CALL NOW: [telephone number]”. In addition, the direct mailing was a yellow card with printed black text, which we considered was reminiscent of the colour scheme of parking charge notices. We considered that those elements were likely to create the impression that the mailing was related to a final notice of some form of official request with which the recipient must engage within a limited period of time.
We noted ACAI Marketing’s name was stated in smaller text at the bottom of the ad. Some of the text on the front, which was stated in Roman typeface, referred to an “unclaimed reward”; text on the back of the mailing contained references to a “reward”, “7 days hotel accommodation vouchers” and “CALL: [telephone number]”. Notwithstanding that, because of the overall presentation of the mailing, the prominence of and the emphasis placed on the claims “final notice”, “warning”, “failure to call”, and “automatic forfeiture” and “call: [telephone number]”, we considered that the references to the advertiser’s name and the unclaimed reward were insufficient to counteract the initial overall impression that the mailing was an official request with which the recipient must engage within a limited period of time. It was therefore not obviously identifiable as a marketing communication.
We considered that upon closer inspection, particularly of the reverse of the mailing, consumers would understand the mailing to be making them aware of a gift to which they were entitled as a result of their recent participation in a telephone survey. We understood that some recipients’ data had been purchased from companies who collected data from online shopping, and so had not participated in a telephone survey. We also understood that if recipients called the telephone number stated in the ad, they would be informed that they could begin a 30-day free trial of a subscription to two discount clubs. If the recipients did not wish to continue with the subscription after 30 days, they would be required to call and cancel, or they would be charged a monthly fee for both discount clubs if they otherwise wished to maintain the subscription. We noted from the information provided by ACAI Marketing that recipients would receive the hotel accommodation vouchers regardless of whether they took up the subscription trials during the call, provided they paid £3.98 postage for the voucher to be sent. However, the subscription offers would be marketed to the recipients as a result of calling the number on the mailing, and a number of the recipients received the mailing without having completed a telephone survey.
Because we understood that the ad was not an official notice, but rather a marketing communication related to ACAI Marketing’s subscription services, we considered that the mailing was not obviously identifiable as a marketing communication. In addition, because calling the number involved listening to a sales message for two discount clubs, and because upon closer inspection the ad implied that recipients could call the number to claim a gift for completing a telephone survey, whereas a number of them received the mailing without having completed a telephone survey, we considered that the mailing was likely to mislead.
For the above reasons, we concluded the ad was in breach of the Code.
On that point, the ad breached CAP Code (Edition 12) rules
2.1
2.1
Marketing communications must be obviously identifiable as such.
(Recognition of marketing communications),
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).
2. Upheld
As set out in point 1 above, we considered that the prominent claims on in the ad – “FINAL NOTICE”, “WARNING”, “Failure to call”, “AUTOMATIC FORFEITURE”, “CALL NOW: [telephone number]” – in combination with the colour scheme of the mailing, which we considered were reminiscent of that of parking charge notices, were likely to create the impression that the mailing was related to a final notice of some form of official request to which the recipient must respond within a limited period of time.
In light of the purpose of the ad as set out above in point 1, we considered that the language used in the prominent claims on the front of the mailing was unnecessarily alarmist in nature, and therefore was likely to cause undue distress to some recipients, particularly to more vulnerable recipients. For those reasons, we concluded that the ad was in breach of the Code.
On that point, the ad breached CAP Code (Edition 12) rule 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 ads must not appear again in their current form. We told ACAI Marketing to ensure that similar ads in the future were obviously identifiable as marketing communications, and that they did not misleadingly imply that recipients received those mailings as a result of completing a telephone survey, if that was not the case. We also told them to ensure that future ads did not use language that would cause undue distress without justification.
