Background
THIS RULING REPLACES THE RULING PUBLISHED ON 30 OCTOBER 2019. THE DECISION TO UPHOLD REMAINS BUT ON REVISED GROUNDS.
Ad description
A page on Amazon.co.uk, first seen in its desktop presentation in May 2019, which formed part of the checkout process.
Text on the ‘PAY’ page stated, “[name of consumer]… we’re giving you a 30-day free trial of Amazon Prime! Starting with this order”. A roundel to the right stated “Get fast free delivery on this order”.
In the middle of the page were a table to the left and a tick list to the right. The table showed some benefits of Amazon Prime including “Standard Delivery … FREE” and "One-Day Delivery …FREE". The tick list also showed benefits of Amazon Prime including "FREE One-Day Delivery on millions of items".
A gold box beneath included text in bold which stated, “Order Now with Prime”. That box was contained within a larger grey box. Text underneath the gold box, but within the grey one, stated, “Continue with FREE One-Day Delivery Pay later”. An option to the left in blue text stated, “Continue and don’t gain Amazon Prime benefits”. Small print at the bottom of the page stated, “By signing up you acknowledge that you have read and agree to the Amazon Prime Terms and Conditions and authorise us to charge your credit card … after your 30-day free trial …”.
Issue
Ten complainants, who believed the presentation of the options was unclear, challenged whether the ad was misleading.
Response
Amazon Europe Core Sarl said the page in question (headed “PAY”) was displayed as part of the desktop (non-mobile) checkout process only for customers who were not active Amazon Prime members and had not already enjoyed a 30-day free trial in the past 12 months. The first option displayed on the page, in the grey box, offered consumers an opportunity to place their order and enjoy a 30-day free trial of Amazon Prime. A gold box sat within the larger grey box that provided additional information about that option. The second option was a blue hyperlink which stated “Continue and don’t gain Amazon Prime benefits” to the left of the grey box. By clicking that link, consumers could continue with their order without signing up or gaining Prime benefits.
Amazon said the information within the grey box (“Continue with FREE One-Day Delivery”) was consistent with the key, prominent and repeated messaging on the page which stated that Free One-day Delivery was a benefit of Amazon Prime. They said the average consumer would understand the grey/gold box in that context, i.e. that the grey box expressly repeated a key delivery time benefit of Amazon Prime, rather than offering an alternative to signing-up to the Prime free trial.
Amazon said the EU Consumer Rights Directive required them to include the “pay later” wording that was included in the grey box to ensure that consumers were clear that there was an obligation to pay if they wished to continue with their Prime membership once their trial had ended. As part of their efforts to improve the signup experience for their customers, they said they periodically adjusted the way they presented the page, and used customer satisfaction data to inform such adjustments and identify potential issues. They said their primary objective was to make sure that consumers who joined Prime did so intentionally and became active members who would make the most of their Prime benefits.
Amazon said that more than 99% of customers who saw the PAY page had been Amazon customers for more than 12 months, and less than 1% were first time customers. Amazon also provided data, some of which they said was confidential, on the number of consumers who visited the page and clicked on the option to continue without Prime. Of the customers who visited the page in May and June 2019, approximately 79% clicked on the option not to sign up for the free trial of Prime, and approximately 21% clicked the option to sign up for the trial.
They believed that data supported their view that average consumers were clear that “Continue and don’t gain Amazon Prime Benefits” allowed them to continue with their order, without signing up for Prime and clicking on the grey box (which included the gold box) allowed them to sign up.
They said customers who cancelled at any time during their 30-day trial period could still take advantage of their Prime benefits for the entire 30-day duration of the trial. They said only a very small proportion of members who signed up through the page cancelled their membership within three days of signing up, and the vast majority of members who signed up through the page and did not cancel made active use of their membership benefits (including delivery and digital) during their 30-day free trial, and once the free trial had ended. They also stated that it was ‘common’ for customers to sign up for a free trial of Prime to secure the free delivery before cancelling to avoid the subscription becoming effective from the 31st day. They also provided us with confidential data in relation to those points. They believed that showed consumers expressly intended to sign up and had not been misled. They were therefore confident that the presentation and wording on the page was clear to their customers.
They said that, while the font used for “Order Now with Prime” was bold, that text and the text stating “Continue and don’t gain Amazon Prime benefits” were the same size. Similarly, the two options were horizontally aligned and presented opposite each other on the page. They believed that was a normal and universally accepted way to present two alternative options on a web page. Furthermore, the text for “Continue and don’t gain Amazon Prime benefits” was blue, indicating it was a clickable hyperlink. They said that this was the standard colour for word hyperlinks on Amazon.co.uk, as with other word hyperlinks on the page.
Assessment
Upheld
The ASA considered that its starting point was to assess how the notional average consumer, who was reasonably well-informed and reasonably observant and circumspect, would be likely to view the ad.
We agreed with Amazon that such a consumer would have reasonable experience and knowledge of shopping online and would, we considered, have varying degrees of familiarity with the Amazon site, depending in part on how often they had used it before. They would likely have been already aware of Amazon, and might well have heard of the Prime service, but would not need to have been reasonably well-informed about the ‘features’ of the Prime service to have had the attributes of the average consumer. We did not consider that the average consumer would necessarily be aware of the one-day nature of the delivery, or familiar with the particular shopping journey, or the way in which the specific page would be laid out, which Amazon said changed from time to time.
We then considered the consumer journey in this case. Consumers would reach the page in question having gone through the checkout process. We were aware (from the complaints) that some consumers saw a previous DISPATCH page. Amazon estimated that this page was served to about 25-30% of consumers, generally being those without a default delivery address or payment method. They said they were not able (due to lapse of time) to be more exact. Nor did they provide any other pages served to the remaining 70-75% of consumers (e.g. in relation to delivery options) which preceded the PAY page. We noted that this Dispatch page included a number of different options for delivery. One option was “FREE One-Day Delivery with a free trial participation with Amazon Prime” (the word Prime being in blue). This was also promoted in a large box above. Another option was “FREE Delivery” (without a Prime trial) which showed an estimated delivery date, with delivery being (in the example shared with Amazon) in 3 to 4 days’ time, and there were also options for delivery at a cost, as well as a “Nominated Day Delivery”. Clicking on the (non-Prime) ‘FREE Delivery’ option and on “Continue” (in a gold box) would then take those consumers (if they were not active Prime members or recent free trial beneficiaries) through to the PAY page. In our view consumers who had already communicated their decision not to continue with a trial of Amazon Prime and had selected “FREE Delivery” (in 3-4 days), without Prime, would view the options that followed on the PAY page in that context.
Once on the PAY page (being the subject of the complaints), the consumer was presented with information in various ways, including a roundel referring to “fast free delivery”, a table on the left with “FREE” delivery benefits for various different delivery types (under the heading “amazon prime”) including “Standard” and “One-Day” delivery, and on the right a tick list of Amazon Prime benefits also including “FREE One-Day Delivery”, as well as options to continue. The most prominent information on the page was text in the gold box (which was contained within a larger grey box) which stated in bold text “Order Now with Prime”, and we considered that the average consumer was likely to understand that to be a discrete option. Directly beneath that, and still within the larger grey box, text stated, “Continue with FREE One-Day Delivery Pay later”. We considered that the presentation and wording of that text meant it was likely to be seen by the average consumer as a separate option, particularly for those who had chosen the non-Prime free delivery (in 3-4 days) option on the previous page and were looking for the option that best reflected that choice. An apparent third option was presented as text on the left stating “Continue and don’t gain Amazon Prime benefits”. It was presented in a faint blue colour, not in bold and against a white background, in a similar format to links within the small print, such as the Terms and Conditions and Privacy Notice and placed in a position which could easily be missed. When compared to the text presented in the grey and gold boxes, it was significantly less prominent. We considered that the average consumer’s most likely reaction was to view the text within the grey and gold boxes as the two options available, with the option in the grey box allowing them to “continue” without signing up to Prime. Even if consumers did notice the smaller blue option, they might well still be drawn to the grey box as a (non-Prime) option, in particular as most naturally reflecting their expectations as to how to “continue” if they had selected free delivery by clicking on the (non-Prime) “FREE Delivery” option on the preceding DISPATCH page.
However, we understood from Amazon that there were in fact only two options on the PAY page: to sign up for a 30-day free trial of Amazon Prime, including free ‘one-day’ delivery with the order (that would automatically convert to a paid membership plan after 30 days if not cancelled), or to continue with an order without signing up for the trial of Prime. The option to sign up for the trial of Amazon Prime was the grey box with the gold box inside, and clicking on either box would sign consumers up to a Prime trial, as there was only one hyperlink. There was no way of undoing that choice by navigating back to a previous page: those who had not intentionally signed up to the trial would need to cancel it separately, once they realised they were signed up. The significantly less prominent blue option alone allowed consumers to continue without signing up to Amazon Prime.
We considered Amazon’s views on how they thought the reasonably well informed, reasonably observant and circumspect consumer would approach the PAY page.
We noted Amazon’s view that that the words “FREE One-Day Delivery” which appeared in the grey box most naturally reflected the same words which appeared in the tick list for Amazon Prime above on the PAY Page, and the “FREE” delivery options under the Amazon Prime heading in the table on the left. However, in our view Prime had benefits other than rapid delivery, and for those who arrived at the PAY page having already selected a non-Prime option, such as those who had selected the “FREE Delivery” option on the preceding Dispatch page, the invitation to “Continue with FREE One-Day Delivery” represented (in our view) a natural (non-Prime) progression. We noted that the DISPATCH page non-Prime free delivery option was for a delivery that would take longer than one day, but in our view for many consumers the fact that the delivery was “FREE” and did not involve having to sign up to Prime would be more important, and the focus of their attention.
In any event we considered that the overall presentation of the PAY page was confusing. In our experience of how consumers ordinarily interacted with web pages on a shopping journey, they did not generally read web pages in their entirety, and would naturally look for clues as to where they should click, rather than spending a long time seeking to ascertain what all of the text on a page said. It was common for purchase or continue buttons to appear towards the bottom right of the page, and consumers were likely to be drawn towards options that appeared there, especially where they were prominently displayed. We considered that consumers were likely to be looking for a binary choice, and the gold and grey boxes appeared to offer one. The online choice architecture outlined above steered the consumer clearly towards those prominent boxes.
We noted Amazon’s argument that the blue colour of the non-Prime option was the standard colour of Amazon word hyperlinks (to which consumers looking to continue would thus be drawn). However, we noted that blue was not used consistently for hyperlinks (even on the PAY page), and whilst the option to continue without signing up to a Prime trial was a blue word hyperlink, it had the same colour and formatting as standard administrative features such as word hyperlinks to Amazon’s terms and conditions, conditions of use and their privacy notice (both on the PAY page and elsewhere across the Amazon site). In addition the “Order Now with Prime” button was in the same gold colour as the “Continue” button on the Dispatch page, and blue colouring was used for offers and claims such as “We’re giving you a 30-day free trial”. At best the colour presentation was confusing rather than consistent.
We considered that the phrase “Pay later” in the grey box could have several meanings, including that a consumer would pay for the product they were buying later in the process, that it referred to financing options, or that they would pay later for the Prime element of the service. We considered it would not be obvious to the average consumer that it meant there was an obligation to pay if the customer wished to continue with their Prime membership once their trial had ended.
We understood that the grey and gold boxes constituted one hyperlink. We considered that consumers who wanted to click the grey option would move their cursor to that option, and would not have any reason to check whether the gold option was also part of the same hyperlink, since that was not the option they were interested in. Those who hovered momentarily over the gold box on the way to clicking the grey one would not necessarily give any importance to the fact that the cursor had not changed, since that was common where links were placed immediately next to each other. In any case, the average consumer, despite being reasonably observant and circumspect, was unlikely to be paying such close attention to the intricacies of the options or the precise behaviour of a cursor, and would simply select the option that they preferred; by the time they realised (if at all) that the two boxes were one hyperlink, it would be too late.
We then considered whether our view on how the average consumer was likely to interact with the PAY page was altered by the figures from Amazon (we did not see the underlying data) which they contended showed how the average consumer would interpret the ad. We noted that 99% of consumers who saw the page had been Amazon customers for more than 12 months, but that did not tell us how many had previously interacted with an ad for Prime during an Amazon shopping journey, still less how many had seen the PAY page (given that Amazon said the page was amended regularly). We noted that on Amazon’s figures approximately 79% of all consumers (whether or not they had the characteristics of the average consumer) who interacted with the PAY page had chosen not to sign up for the Prime trial. That nevertheless left a significant minority (whether that was 21%, or a rather higher figure given for May 2019 alone), a large number in numerical terms, who had signed up for the trial. We had no or inadequate information relating to how many of those who signed up had previously been exposed to Prime sign-up options on different variants of the web page or in other contexts, or who had signed up accidentally at least over 12 months earlier, all of which would affect how well-informed or circumspect they might be (with the latter for example being extra vigilant and perhaps too well informed to be a notional average consumer). Nor did we have adequate information from Amazon on those who had intended not to sign up. Amazon’s figures did not preclude a significant minority having signed up to Prime accidentally.
We noted that a Which? survey in June 2019 of 1,199 members reportedly found that more than half had a Prime membership or had previously been a subscriber. Of those people, 28% reportedly said that they had accidentally signed up to Prime, with 18% of that group reportedly only realising when Amazon sent them an email indicating that their subscription was about to renew. Amazon said that the survey was irrelevant, and we treated the results with caution, given that we did not have the questions, methodology and underlying data, and as being of limited application to the present case given that the survey related to a different Pay web page. However, the survey concerned a similar time, and we noted that the Pay page as published by Which? also presented a “Sign up and pay” button (which Which? described as in the same colour and design as the familiar “Buy now” button) significantly more prominent than the non-Prime option, and that a preceding delivery page featured delivery choices similar to those in our DISPATCH page, in which a non-Prime option (“Standard Delivery”) had been selected.
We noted from Amazon’s figures that, for those who saw the ad on any given day during the relevant time period, approximately 21% chose the option that signed them up to the Prime trial. What the numbers from Amazon did not explain was how the notional average consumer, who was reasonably well informed, reasonably observant and circumspect, would react to the ad.
Evidence of the numbers who chose to take advantage of Prime benefits having signed up to the free trial and of those who ended up paying for Prime membership at the end of the trial period did not demonstrate that those consumers had not been misled into clicking the Prime option in the first instance. There was little incentive to cancel before near the end of the free trial period and no way of determining whether those who paid for Prime membership did so because (i) they had intended from the outset to do so; or (ii) they had not initially intended to sign up but had been convinced of the value of the service during the trial period; or (iii) as Amazon suggested was common, they had intended to cancel before the end of the trial period, having taken advantage of the free offer, but failed to do so, or (iv) simple inertia meant they did not cancel.
Although Amazon had provided information showing a very small percentage of consumers cancelled within three days, they did not provide evidence of how many people cancelled by the end of the trial period, nor how many had cancelled after the trial had ended, and once they had been billed. Nor were they able to tell us the number of people who cancelled their subscription stating that they did not intend to sign up for Prime. Prime might well be considered a good offer by many, but there were also reasons why a consumer might not want to sign up to Prime, including cost, insufficiently frequent likely usage given a desire to continue to use other (perhaps more local) retail outlets or other platforms, and so on.
Whilst the information provided by Amazon indicated that at least approximately 79% of consumers managed to navigate the PAY page without being misled into signing up for Prime, we considered that a significant minority of consumers, particularly those who had already in the checkout process opted not to sign up for Prime, and those unfamiliar with this presentation (including infrequent customers and first-time customers, albeit on Amazon’s figures the latter were less than 1%) were likely to be misled. Notwithstanding that they were, like the notional average consumer, reasonably well informed and reasonably observant and circumspect, they were in our view likely to miss the option to continue without signing up, and to view the text within the grey and gold boxes as the only two options available, with the option within the grey box allowing them to continue without signing up to Prime. Given that that would in fact result in them being signed up to Prime, we concluded that the presentation of the options was likely to mislead.
The ad breached CAP Code (Edition 12) rule 3.1 (Misleading advertising).
Action
The page that formed part of the check-out process should not continue to appear in the form complained of. We told Amazon Europe Core Sarl to ensure that options relating to signing up to Amazon Prime, or to continue without doing so, were presented clearly and prominently in future.
