Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld, and one was Not upheld.
Ad description
A website, www.beyondraspberryketone.co.uk, for a diet product, was headed "Beyond Raspberry KETONE LOSE WEIGHT AND FEEL GREAT WITH BEYOND RASPBERRY KETONE". An arrow, which pointed at a form where website visitors entered their name and contact details, had the text "ACT NOW AND GET YOUR TRIAL!" on it. The form was headed "TELL US WHERE TO SEND YOUR TRIAL!". Next to a tick box, text stated "I agree to the Terms and Conditions of this site". The text "Terms and Conditions" was linked to a pop-up box which listed terms and conditions. Underneath that text, a button stated "RUSH MY TRIAL".
The long web page included information about the product, its ingredients and 'before and after' images of people who had used the product. At the bottom of the web page, text stated "Get Your Trial Today!" next to a button labelled "RUSH MY TRIAL". Clicking on the button took the website user back to the top of the page. Small print at the bottom of the page stated "Home | Contact Us | Terms | Privacy". Clicking on "Terms" brought up the Terms and Conditions pop-up box. The terms and conditions included text which stated "The 14-day trial offer for Beyond Raspberry Ketone includes enrolment in our auto home delivery program, which is subject to the auto home delivery programme terms described below. The 14-day trial period starts the same day of purchase. We do not guarantee arrival dates or times ... You will receive an e-mail notice confirming your order so that you know when your trial period starts and when your card has been charged for shipping and handling, or if you didn't receive your e-mail [sic] ... You must contact customer service before the end of the 14-day trial period to cancel and avoid further charges. If you do not cancel, we will charge £79.95 on the day your trial period ends ... and you will continue with the auto delivery program".
Issue
The complainant challenged whether:
1. the ad was misleading, because it did not make clear that significant conditions applied to the promotion, such as the condition that consumers must cancel and return any unused product within 14 days or be charged £79.95 and be automatically enrolled into receiving a monthly supply at the cost of £79.95 per month;
2. the promotion had been administered fairly, because they had not received an e-mail confirming when the trial would begin and end; and
3. the ad breached the Code, because it did not make clear the marketer's geographic address.
Response
Beyond Nutra did not respond to the ASA's enquiries.
Assessment
Upheld
The ASA was concerned by Beyond Nutra's lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and we told them to do so in future.
1. Upheld
We considered the prominent claims such as "TELL US WHERE TO SEND YOUR TRIAL!", "ACT NOW AND GET YOUR TRIAL!", "RUSH MY TRIAL" and "Get Your TRIAL Today!" would be understood by consumers to mean that they were signing up only to receive a trial bottle of the product, for which they would not be charged. We noted that the terms and conditions pop-up box included information with regard to the charges that would be incurred if consumers did not cancel and return the product within 14 days; we considered that information constituted significant conditions and costs which were reasonably likely to influence consumers' decisions and understanding about the promotion and which therefore must be presented clearly to consumers. However, we considered that including that information only in a pop-up box linked to small text was not sufficient. We considered that all references to the 'trial' in the main body copy of the ad should have been immediately followed by qualifying text which made clear that charges would be incurred if consumers did not cancel within 14 days. We concluded the promotion was misleading.
On this point, the ad breached CAP Code 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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification),
8.2
8.2
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
(Sales Promotions) and
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
(Significant Conditions for Promotions).
2. Upheld
We noted the terms and conditions in the pop-up box stated "You will receive an e-mail notice confirming your order so that you know when your trial period starts ...". We understood the complainant had not received such an e-mail and therefore had not received confirmation of when the trial began and ended, and therefore had not been fully informed of the date by which they must return the product if they were to avoid being charged. In the absence of any evidence to show that those e-mails had been sent to customers, we concluded the promotion had not been conducted equitably, promptly or efficiently and had not dealt fairly and honourably with participants.
On this point, the ad breached CAP Code (Edition 12) rule 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales Promotions).
3. Not upheld
We noted that the Code required distance selling marketing communications to provide a geographical address. We noted that the Terms and Conditions pop-up box, and a web page accessed through the "Contact Us" link at the bottom of the web page, included a geographical address for the advertiser. We therefore concluded the ad did not breach the Code in that regard.
On this point, we investigated the ad under CAP Code (Edition 12) rule 9.1 (Distance Selling) but did not find it in breach.
Action
The ad must not appear again in its current form. We told Beyond Nutra to ensure significant terms and conditions were clearly stated in their promotions and to conduct their promotions equitably, promptly and efficiently and deal fairly and honourably with participants. We referred the matter to CAP's Compliance team.
CAP Code (Edition 12)
1.7 3.1 3.10 3.3 3.9 8.17.1 8.2 9.1
