Background
Summary of Council decision:
Two issues were investigated, one was Upheld and one was Not upheld.
Ad description
A direct mailing from a prize promotion operator included large text above the address panel on the envelope that stated "WRITTEN WARNING". To the left of the address panel, text stated "GIFT CHEQUE DUE TO YOU WILL BE FORFEITED AT MIDNIGHT ON 17 JANUARY UNLESS YOU SIGN AND RETURN THE REQUIRED PAPERS BY DEADLINE DATE". Text underneath the address panel stated "MARKETING COMMUNICATION". In the top left-hand corner of the envelope, text stated "Cash Distributions Processing Dept. Records Locator Centre" and text immediately below stated "Bright-Life UK, P.O. Box 335, Liverpool, L13 1WB".
Text on the back of the envelope stated "MONEY DUE TO YOU NO FURTHER ATTEMPT TO CONTACT YOU THIS MONTH WILL BE MADE. YOU HAVE UNTIL 17 JANUARY TO READ, RESPOND AND PROPERLY CLAIM ALL CASH RIGHTFULLY YOURS". Text in the style of an ink stamp said "SEALED 29 NOVEMBER 2012 AM 8:56". In the top right-hand corner was a barcode with the words "CASHtrak DISBURSEMENT TRACKING" written underneath.
Issue
1. Gloucestershire Trading Standards and two members of the public challenged whether the direct mailing was likely to cause undue fear and distress, because they felt that the envelope suggested that it was official correspondence and exaggerated the importance of the contents.
2. A member of the public challenged whether the claim "NO FURTHER ATTEMPT TO CONTACT YOU THIS MONTH WILL BE MADE" was misleading, because a second mailing, which appeared to relate to the same promotion, was received shortly afterwards.
Response
1. JDM Marketing Ltd, trading as Bright-Life UK (Bright-Life), did not consider that the envelope suggested it was official correspondence or exaggerated the importance of its contents. They said the envelope was clearly marked "MARKETING COMMUNICATION" and, as such, could not be thought of as an official document, because it was only a marketing communication.
2. Bright-Life stated that the wording on the back of the envelope, including the claim "MONEY DUE TO YOU", related to a guaranteed cash award to which the recipient of the mailing was entitled. They said the statement "NO FURTHER ATTEMPT TO CONTACT YOU THIS MONTH WILL BE MADE" related to the "MONEY DUE" from this mailing; the second mailing received by the complainant was part of a different promotion and therefore a different cash award was available to the recipient. They said the two promotions were distinguishable by the difference in reference numbers, which were shown on the bottom left of the reverse of the envelopes. They also provided a screenshot from their computer system showing the purchase ledger for a customer who had responded to both mailings, which showed that two different orders had been shipped. They said cheques had been sent in respect of each mailing.
Assessment
1. Upheld
The ASA noted that the envelope contained text above the address panel which stated "WRITTEN WARNING". Because of its size and location, we considered that that text was the most prominent claim on the envelope and was likely to alarm many recipients. The top left-hand corner of the envelope, which would typically contain details of the sender's return address, bore a coat of arms above the text, in bold, "Cash Distributions Processing Dept. Records Locator Centre". We considered that that was likely to indicate to recipients that the mailing originated from an official source.
We noted that text in roman type below the coat of arms gave the marketer's trading name and PO Box address, and that text in a black panel below the "WRITTEN WARNING" wording referred to a "GIFT CHEQUE DUE TO YOU [that] WILL BE FORFEITED AT MIDNIGHT ON 17 JANUARY ...". However, we were concerned that some recipients would not identify the warning as relating solely to the opportunity to enter a promotion and claim a gift cheque and that, as such, the alarming text "WRITTEN WARNING", in combination with the coat of arms in the top left-hand corner of the envelope, inflated the importance of the mailing.
We noted the presence of the statement "MARKETING COMMUNICATION" at the bottom of the envelope, but because of its small size relative to the "WRITTEN WARNING" claim and its location away from the other text considered that it was not sufficiently prominent to make clear the commercial intent of the mailing. We therefore concluded that the mailing was likely to cause distress to some recipients without justifiable reason.
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) and 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).
2. Not upheld
We considered that consumers were likely to understand from the claim "NO FURTHER ATTEMPT TO CONTACT YOU THIS MONTH WILL BE MADE", which appeared under the heading "MONEY DUE TO YOU", that if they did not respond to the mailing before the specified deadline they would miss out on the opportunity to receive money to which they were entitled as part of the advertised promotion. We noted that one complainant had found that a second mailing had been received within the same month, and that they considered the claim misleading on that basis. However, we understood from Bright-Life that the two mailings were separate promotions with different cash awards. Although the contents of both were largely similar, we noted that the envelopes for each contained different reference numbers. Further, the screenshot provided by Bright-Life demonstrated that a recipient responding to both mailings had been sent two separate orders, one under each reference number, and we understood that a cheque for the cash award had been issued with each. Because the mailings related to different promotions, we considered that receipt of the second mailing within the same month did not contradict the impression created by the claim "NO FURTHER ATTEMPT TO CONTACT YOU THIS MONTH WILL BE MADE" on the envelope of the first. For that reason, we concluded that the claim was not misleading.
On that point, we investigated the mailing under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 3.31 3.31 Marketing communications must not falsely claim that the marketer is about to cease trading or move premises. They must not falsely state that a product, or the terms on which it is offered, will be available only for a very limited time to deprive consumers of the time or opportunity to make an informed choice. (Availability), but did not find it in breach.
Action
The mailing must not appear again in its current form. We told JDM Marketing Ltd to ensure that their future mailings did not cause distress without justifiable reason.
