Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A website, www.deadseakit.com, for a beauty product, was headed "DEAD SEA BeautyKit™". A Union Flag was displayed next to the text. Part of a Union Flag was also displayed as a background at the top of the page. Further text stated "Get this YOUNGER & Healthier LOOK NOW! Claim Your Trial Beauty Kit " next to a form where website visitors entered their name and contact details. Text above the form stated "Specially priced trial kits remaining: 019 *Limited quantities. While supplies last. Tell us where to send Your Trial Kit". Text underneath the form stated "Send My Beauty Kit". The web page included further text, photos, and a video which described the product's effectiveness. Large, bold text at various points on the page stated "RESERVE YOUR KIT HERE , "Claim Your Trial Kit Now Yes! Send My Beauty Kit" and "Very Limited Supplies! Get Your Risk-Free Trial Kit Today .
Small print at the bottom of the web page stated "Our 100% Satisfaction Guarantee: If you are not 100% satisfied for any reason, you can return the unused products in their original packaging up to 30 days after you purchase it for a full refund of the purchase price (full terms under T&C's). Customer pays return shipping. Return address: PO Box [XXXX], Caesarea [XXXX], Israel. Risk-free trial offer. By buying this Special Trial Beauty Kit, you agree to enrol in our Autorefill Program. You will be charged applicable shipping and handling fees upon placing the order and will then have 14 days to try our products and return them if you are not completely satisfied. If you choose to keep the kit, you will be charged the full cost of £59.95. We will then automatically send you a replenishment of the products you have ordered according to our common replenishment guidelines (normally, every 30 calendar days). Your card will be charged by Deadseakit.com [XXXX] accordingly upon dispatch of the replenishment package. Autorefill can be cancelled at any time by simply logging into your account".
Issue
The ASA received five complaints:
1. Four complainants challenged whether the ad was misleading, because the qualifications to the trial offer were not presented sufficiently clearly.
2. Four complainants challenged whether the references to the product being a "Trial Kit" and a "Risk-Free Trial Kit" were misleading, because they implied that consumers were committing only to a trial of the product.
3. One complainant challenged whether the Union Flag displayed next to the advertiser's name was misleading, because it implied the advertiser was a UK-based company.
Response
1. DS Marketing Ltd (DSM) said their website stated "risk free trial", because if consumers could demonstrate that they had sent the product back within two weeks after delivery they would not be charged. They said consumer satisfaction was a high priority for them and they would do all they could to ensure they complied with UK advertising standards, even though they were not based in the UK. DSM said their website clearly disclosed that the offer was on a trial basis and provided the ASA with a link to a 'terms and conditions' page on their website, although it appeared that the ad did not include a link to that page. They said that every consumer who signed up for the trial was required to confirm they had read and agreed to those terms, which were displayed at the bottom of the ad (the 'landing page') and on the following payment/checkout page to the left of the form where consumers filled out their credit card information. They said they had worked with Trading Standards to ensure their terms and conditions complied with UK and EEC standards, including extending their returns policy to 30 days from the date of delivery.
2. DSM said they considered the word "Trial" made it very clear to consumers that they were enrolling in a trial programme, which would involve them trying the products rather than sampling them; they did not offer "samples". They considered the references to "trial kits" and "risk-free trial kit" were accurate, because the conditions on which consumers could try their products were clearly outlined in the terms and conditions.
3. DSM said they displayed the flags of all countries they operated in, and the Union Flag in no way implied that they were a UK-based company; they considered their branding of "Dead Sea" made that clear. The said it could be argued that simply by stating their prices in British pounds, by shipping to the UK, or just by mentioning the UK, they could be claiming an association with the UK. They considered that displaying the Union Flag or the '£' symbol did not imply any national associations or bias.
Assessment
1. Upheld
The ASA noted the small print at the bottom of the landing page, and on the following payment/checkout page, gave information about the terms and conditions of the 'trial'. However, we noted that on the landing page those terms and conditions appeared in small grey text at the bottom of a very long web page. We noted that the contact details form appeared at the very top of the landing page, and that links throughout the web page which stated "TRY IT NOW!", "RESERVE YOUR KIT HERE" and similar, linked back to the top of the same web page. We noted there was nothing to indicate to consumers that they would find terms and conditions at the bottom of the web page. We concluded the terms and conditions to the offer had not been presented sufficiently clearly to consumers on the landing page.
We acknowledged that the placing of the terms and conditions on the payment/checkout page was more prominent, but noted they also were in small grey print. We noted that at the bottom of the credit card form, text stated "By placing this order I confirm to be 18 years or older and have read and agree to the Terms and Conditions" but that there was nothing to link that statement to the terms and conditions information, either on that web page or elsewhere. We concluded the terms and conditions were also not presented sufficiently clearly to consumers on the payment/checkout web page.
Notwithstanding the above, we noted that the terms and conditions on the landing page stated that consumers could return the product "up to 30 days after you purchase it for a full refund of the purchase price" but then stated customers would "have 14 days to try our products and return them". We noted the payment/checkout page only referred to a 14-day returns period. We considered the time period for returns was therefore unclear and consequently a significant qualification to the offer had not been presented clearly to consumers.
On this point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(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) 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 considered the claim "Risk-Free Trial Kit" implied that consumers would not be taking any risks when signing up for a trial. We considered, however, that because consumers would be charged for the trial product and for monthly instalments of the product thereafter if they failed to return the trial product within 30 days of the order date, there was an element of risk to the trial. We concluded the claim "Risk-Free Trial Kit" was, therefore, misleading. We also considered that the claim "Trial Kit" implied that consumers were signing up only to receive a trial of the product, when that was not in fact the case. We concluded that because the claim "Trial Kit" was not followed immediately by qualifying text which made clear that charges would be incurred if consumers did not return the product within 30 days of the order date, it was misleading.
On this point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
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.
(Qualification) 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).
3. Upheld
We considered it likely that consumers would generally be aware that not all companies which quoted prices in British pounds on their websites and delivered products to the UK would be based in the UK. However, we considered that, because the Union Flag was featured prominently at the top of the landing page directly next to the name of the product, and was also displayed as a background, the implication was that the product was either manufactured in the UK or distributed by a company based in the UK. We understood, however, that DSM was based in Israel, and that customers must return the product to Israel in order to cancel the ongoing monthly commitment. We considered that was significant information which was likely to influence a consumer's decision as to whether to sign up to the trial. We concluded that the use of the Union Flag was misleading.
On this point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(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.
(Qualification) 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).
Action
The ad must not appear again in its current form. We told DSM to ensure that all significant conditions and qualifications were presented clearly. We told them not to refer to the offer as a "Trial" unless they immediately qualified the claim to make clear that charges would be incurred if customers did not return the product within 30 days of the order date. We also told them not to refer to the offer as "risk-free". We told them they should not use images, including the Union Flag, which implied they were a UK-based company.
