Background
Summary of Council decision:
Twelve issues were investigated, all of which were Upheld.
Ad description
Two websites offered trials of Ketone Premium and made various claims about its efficacy as a weight loss product.
a. The website www.ketonepremium.com stated "MELT AWAY FAT! GET A TIGHT BODY ... Claim your TRIAL BOTTLE today. HURRY! Only while supplies last, trials are very limited!". Above an online form which requested customer contact details text stated "Tell us where to send your trial bottle". On entering their contact details, customers were taken to another page where they were required to enter their credit card details. The product price was displayed at the top of the page. Text stated "Sub-total £0.00, Shipping fee: £4.68, Total £4.68". Above a link that stated "Order Now" a tick box stated "By clicking Rush My Order, I confirm I am over 18 and agree to the Terms of this site". The box was already ticked. Small text at the bottom of the order form stated "By placing your order today you'll be shipped a 30 day supply of Ketone Premium and a 30 day supply of Ketone Premium patches (you just pay P&P). If you feel Ketone Premium [is] not for you, cancel within 14 days from the day you order to avoid the purchase fee of £37.50 per item and enrolment in the auto-shipment program, which sends you a fresh supply of Ketone Premium every 30 days, starting 30 days after your trial period starts, at the low price of £37.50 per item. By ordering you agree to the full terms and conditions shown here [weblink]. To cancel anytime call 0844 XXX XXXX. Limited Quantities Available! Sign Up Today!".
b. The website www.the-healthy-insider.com stated "'Flat Belly' Raspberry Ketone Diet Exposed: Really A New Miracle Diet?" Text stated "AS SEEN ON" followed by the logos of Sky News, BBC, Telegraph and Forbes.com. The ad contained several "before and after" images of individuals who had lost weight.
Issue
Twenty-six complainants challenged whether ad (a) was misleading because it did not make it sufficiently clear that:
1. customers would be charged £75 for the two products if they did not return them within 14 days of ordering them; and
2. by ordering the trial products they were signing up for an "auto-shipment program" that meant they would continue to receive products for which payments would be debited from their bank account.
3. Two complainants challenged whether it was fair that the terms and conditions box in ad (a) was already ticked.
4. One complainant challenged whether the "before and after" images in ad (b) implied that these weight loss health claims were authorised on the EU register.
Eight complainants challenged whether the ads complied with the CAP Code because:
5. they did not state the advertiser's geographic address;
6. they did not contain details of how customers could cancel their order;
7. they did not state the minimum duration of the contract;
8. they did not state that customers had the right to cancel; and
9. they did not state that customers needed to pay a cancellation fee if they cancelled their order.
10. Five complainants who had cancelled their trials within the 14-day trial period but were still charged for the product challenged whether the claim "trial" in ad (a) was misleading and could be substantiated.
11. Two complainants challenged whether ad (a) was misleading, because despite being charged for products as part of the auto-shipment program, they had not received any additional products.
12. One complainant challenged whether the claims in ad (a) that referred to a 30-day supply for a trial period were misleading, because customers had to return half the products after 14 days to avoid being charged for them.
Response
ketonepremium.com said they no longer marketed Ketone or Cleanse Premium and so the advertising had ceased.
Assessment
1., 2., 3., 4., 5., 6., 7., 8., 9., 10., 11. &12. Upheld
The ASA welcomed ketonepremium.com's assurance that they no longer marketed Ketone or Cleanse Premium and that advertising for them had ceased. Nevertheless, we noted that we had previously asked ketonepremium.com for an assurance that their advertising would comply with the CAP Code following a previous upheld complaint, but we had not received that assurance from them and the ads that were the subject of the current investigation had been published. We considered, therefore, that it was not appropriate to close the complaints informally. Ketonepremium.com had not supplied evidence or other information that demonstrated that ads (a) and (b) made it clear that customers would be charged £75 for the two products if they did not return them within 14 days of ordering them; that by ordering the trial products customers were signing up for an "auto-shipment program" that meant they would continue to receive products for which payments would be debited from their bank account; that it was fair that the terms and conditions box in ad (a) was already ticked; which substantiated that the weight loss health claims implied by the "before and after" images in ad (b) were authorised on the EU register; that the ads stated the advertiser's geographic address; that they contained details of how customers could cancel their order; that they stated the minimum duration of the contract; that they stated that customers had the right to cancel; that they stated that customers needed to pay a cancellation fee if they cancelled their order; which substantiated the claim "trial" in ad (a); which demonstrated that complainants had been sent the additional products they had been charged for under the auto-shipment program advertised in ad (a); and which substantiated the claims in ad (a) that referred to a 30-day supply for a trial period. Because of that, we concluded that ads (a) and (b) were misleading and in breach of the Code.
On points 1 and 2, ad (a) 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.
3.4.1
3.4.1
the main characteristics of the product
3.4.3
3.4.3
the price of the advertised product, including taxes, or, if the nature of the product is such that the price cannot be calculated in advance, the manner in which the price is calculated
and
3.4.5
3.4.5
the arrangements for payment, delivery, performance or complaint handling, if those differ from the arrangements that consumers are likely to reasonably expect
(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),
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices) and 9.2.1, 9.2.9, 9.3.2, 9.3.5 and 9.5.3 (Distance selling).
On point 3, ad (a) 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.
3.4.1
3.4.1
the main characteristics of the product
and
3.4.5
3.4.5
the arrangements for payment, delivery, performance or complaint handling, if those differ from the arrangements that consumers are likely to reasonably expect
(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 9.2.1, 9.2.5, 9.2.9, 9.3.2, 9.3.5 and 9.5.3 (Distance selling).
On point 4, ad (b) breached CAP Code (Edition 12) rule 15.7 15.7 Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule 15.1.1 above. Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim as specified in the EU Register. (Food supplements and other vitamins and minerals).
On point 5, ads (a) and (b) breached CAP Code (Edition 12) rules
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.
and
3.4.2
3.4.2
the identity (for example, a trading name) and geographical address of the marketer and any other trader on whose behalf the marketer is acting
(Misleading advertising) and 9.1 and 9.3.4 (Distance selling).
On points 6, 7, 8 and 9, 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.
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.
3.4.2
3.4.2
the identity (for example, a trading name) and geographical address of the marketer and any other trader on whose behalf the marketer is acting
and
3.4.5
3.4.5
the arrangements for payment, delivery, performance or complaint handling, if those differ from the arrangements that consumers are likely to reasonably expect
(Misleading advertising) and 9.1, 9.2.1, 9.2.5, 9.2.9, 9.3.2, 9.3.4, 9.3.5 and 9.5.3 (Distance selling).
On point 10, ad (a) 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.
3.4.1
3.4.1
the main characteristics of the product
3.4.2
3.4.2
the identity (for example, a trading name) and geographical address of the marketer and any other trader on whose behalf the marketer is acting
3.4.3
3.4.3
the price of the advertised product, including taxes, or, if the nature of the product is such that the price cannot be calculated in advance, the manner in which the price is calculated
and
3.4.5
3.4.5
the arrangements for payment, delivery, performance or complaint handling, if those differ from the arrangements that consumers are likely to reasonably expect
(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),
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),
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices) and 9.1, 9.2.1, 9.2.5, 9.2.9, 9.3.2, 9.3.4, 9.3.5 and 9.5.3 (Distance selling).
On point 11, ad (a) 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.
3.4.1
3.4.1
the main characteristics of the product
3.4.2
3.4.2
the identity (for example, a trading name) and geographical address of the marketer and any other trader on whose behalf the marketer is acting
3.4.3
3.4.3
the price of the advertised product, including taxes, or, if the nature of the product is such that the price cannot be calculated in advance, the manner in which the price is calculated
and
3.4.5
3.4.5
the arrangements for payment, delivery, performance or complaint handling, if those differ from the arrangements that consumers are likely to reasonably expect
(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),
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices) and 9.1, 9.2.1, 9.2.5, 9.2.9, 9.3.2, 9.3.4, 9.3.5 and 9.5.3 (Distance selling).
On point 12, ad (a) 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.
3.4.1
3.4.1
the main characteristics of the product
3.4.2
3.4.2
the identity (for example, a trading name) and geographical address of the marketer and any other trader on whose behalf the marketer is acting
3.4.3
3.4.3
the price of the advertised product, including taxes, or, if the nature of the product is such that the price cannot be calculated in advance, the manner in which the price is calculated
and
3.4.5
3.4.5
the arrangements for payment, delivery, performance or complaint handling, if those differ from the arrangements that consumers are likely to reasonably expect
(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),
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices) and 9.1, 9.2.1, 9.2.5, 9.2.9, 9.3.2, 9.3.4, 9.3.5 and 9.5.3 (Distance selling).
Action
The ads must not appear again in their current form.
CAP Code (Edition 12)
15.7 3.1 3.10 3.11 3.17 3.3 3.4.1 3.4.2 3.4.3 3.4.5 3.45 3.50 3.6 3.7 3.9 9.1 9.2.1 9.2.5 9.2.9 9.3.2 9.3.4 9.3.5 9.5.3
