Ad description
Two ads for Bier Company, a mail order subscription beer service, sent to their subscribers on 1 April 2022:
a. An email with an image of a Bier Club “Black Card” and text which stated “CONGRATULATIONS! You are this month’s winner FREE BEER FOR LIFE use code: SLOOFLIRPA” with a link underneath labelled “CLAIM NOW”. Underneath, further text stated “We’re thrilled to share some exciting news with you: Out of all our entrants this month, you are our 4th Black Card winner! Simply follow biercompany.co.uk/BlackCard and use the code ‘SLOOFLIRPA’ to claim your prize now. As a Black Card winner you are entitled to a free subscription to the Bier Club for the rest of your life, including: delivery of 8 beers each month … Free delivery sitewide … Access to our member’s area with earlybird prices … A gold-plated members only Craftmaster glass … A personalised gold-engraved black card”.
b. A text message stated “URGENT … You’ve won a Black Card – You are this month’s winner. Free beers for life! Use code SLOOFLIRPA – Claim now …” followed by a link to a web page.
Issue
The complainants, who understood that the communications had been part of an April Fool’s joke and that the recipients had not actually won a Black Card, and would instead be signed up to a paid subscription service, challenged whether the ads were misleading.Response
Bier Nuts Ltd t/a Bier Company Ltd said that they sent out the text and email with the SLOOFLIRPA code and link to consumers who had opted-in to receive marketing communications from them, in order to take part in April Fools’ Day. They said the link took consumers to the Bier Club website where they were prompted to enter the code, which then allowed them to sign up to the Bier Club monthly subscription service costing £22.95 a month, but with the first month free. Bier Company said that consumers had a 30-day period in which to cancel the subscription, which they believed offered ample opportunity to do so if they wished.
Bier Company provided screenshots of what they said the checkout page would have looked like for consumers entering the SLOOFLIRPA code on both mobile and desktop devices. They believed that the screenshots showed that consumers were clearly informed, prior to confirming the order, that that they were agreeing to a monthly subscription service, and that it did not state or imply that they had won free beer for life. They said that was reinforced by the requirement for consumers to tick a box confirming they understood the nature of the transaction prior to confirming the order.
Bier Company said that consumers who took out a subscription had been able to easily cancel it by emailing or phoning the company, and they could do so prior to the subscription renewing, therefore avoiding paying the subscription services cost if they wished. They said that, because consumers would have been able to claim the free month’s subscription without paying anything for the product or the postage and packing, and since the Black Card was a real item which they awarded once a month to one consumer via prize draw, they believed the promotion had been compliant with the requirements of the CAP Code.
Bier Company also believed they had received approval from Trading Standards that they were fully compliant with all relevant guidance.
Assessment
Upheld
The CAP Code stated that promoters must not falsely claim or imply that the consumer had already won, would win or would on doing a particular act win a prize (or other equivalent benefit), if the consumer incurred a cost to claim the prize, or the prize did not exist.
The ASA noted that both ads stated that the recipient was a winner, and text in each ad stated "free beer for life" and "free beers for life" respectively. We considered that consumers were likely to understand from the ads that they were the winners of a competition, and that their prize entitled them to a lifetime’s supply of free beer from the advertiser.
However, we understood that this was not the case, and that recipients who followed the link and entered the relevant code would be signed up for a paid subscription, albeit with one month of the service for free.
We noted that Bier Company believed they had complied with the requirements of the Code on the basis that the "Black Card" offering free beer for life did exist, and was an item that they did sometimes award to consumers. However, it was clear that for the recipients of the ad, the prize did not exist, and that they had been falsely told they were winners as part of an April Fool’s joke. The fact that the prize had been awarded in the past merely reinforced the likelihood of recipients believing they had won the prize.
We noted Bier Company’s comments that the sign-up process once the link had been followed required consumers to confirm that they understood that they were signing up for a monthly subscription service, and that the sign-up page did not state they had actually won free beer for life. However, by that point, consumers would already have been misled by the ads into believing they had won a prize, when that prize did not exist, which was prohibited by the Code.
We noted that Bier Company had received informal advice from Enfield Council’s Trading Standards office, regarding consumer protection legislation. We understood, however, they had not received Assured Advice on the ads in question. Enfield Council confirmed that they were not Bier Company’s Primary Authority, and had not approved the ads.
Because ads (a) and (b) gave the impression that consumers had won a prize when no such prize existed, we concluded that both ads were misleading and breached the Code.
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. (Misleading Advertising), and 8.21.1 8.21.1 Promoters must not falsely claim or imply that the consumer has already won, will win or will on doing a particular act win a prize (or other equivalent benefit) if the consumer must incur a cost to claim the prize (or other equivalent benefit) or if the prize (or other equivalent benefit) does not exist. (Prize Promotions).
Action
We told Bier Nuts Ltd t/a Bier Company to ensure future ads and promotions did not mislead consumers by falsely claiming or implying they had won a prize.
