Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
An Instagram story post and a website for underwear retailer On That Ass, seen on 7 October 2022:
a. The Instagram story post on On That Ass’s account, featured a picture of a pair of boxer shorts with superimposed text that stated “Try now for FREE”. At the bottom of the post was a hyperlink that took consumers to On That Ass’s website.
b. The website www.onthatass.com, linked to from ad (a), stated “Always the perfect pair of boxer shorts. Receive awesome boxer shorts every month”, followed by a checklist that included the claim “No strings attached, always cancelable [sic] online". Underneath that was a button which stated: “Try for free”.
Issue
The complainant challenged whether:
1. the claim “Try now for FREE” in ad (a) was misleading, because they understood it related to a free trial period, rather than a free sample of the product shown;
2. ad (b) was misleading because it did not include all applicable significant conditions of the free trial offer.
Response
1. & 2. On That Ass International BV t/a On That Ass detailed the sign-up process on their website for their service and free trial, including screenshots of the relevant stages that a consumer passed through. They also included examples of the initial emails sent to new customers. The screenshots showed examples of where in the customer journey the “No strings attached, always cancelable [sic]” claim appeared; that they notified new customers two days before their trial period ended; that one-months’ notice was required to cancel after the trial period; and the dates of payment.Assessment
1. Upheld
The CAP Code stated that marketing communications must not describe a product as "free", "gratis", "without charge" or similar if the consumer has to pay anything other than the unavoidable cost of responding and collecting or paying for delivery of the item. It also stated that marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a "free" offer.
The ASA considered consumers would understand the claim “Try now for FREE” in ad (a) to mean they could receive a free sample of the boxer shorts shown and would not expect that once they clicked through to On That Ass’s website, they would have to sign-up to a free trial for a subscription service in order to receive the product. We considered that was material information that could affect a consumer’s decision about whether or not to find out more about the free product by clicking through to the website.
We understood On That Ass provided an underwear subscription service, through which consumers could receive a pair of boxer shorts each month, and that the claim “Try now for FREE” in the ad referred to a free trial period consumers could sign-up to before undertaking a full subscription. However, the ad did not include any information relating to the free trial period of the service and did not make it clear that in order to receive the product consumers have to sign-up to a free trial for a subscription service. Because it did not indicate that it was referring to a free trial, instead of a free sample of the product shown, we concluded the ad had breached the Code.
On that point 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.
(Misleading advertising), and
3.23
3.23
Marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a "free" offer.
(Free).
2. Upheld
The CAP Code required that marketing communications or other material referring to promotions must communicate all applicable significant conditions or information, where the omission of such conditions or information was likely to mislead. Significant conditions included how to participate, costs, and other major factors reasonably likely to influence consumers’ decisions or understanding about the promotion.
The free trial was presented without any accompanying terms and conditions or directions to where they could be found on the website. The only information accompanying the free trial offer was text stating “No strings attached, always cancelable [sic] online”.
We understood, however, that after signing-up for the free trial, consumers would receive their trial pair of boxer shorts within seven days. Consumers had a 14-day period from when they signed-up within which they could cancel the service without charge. If they did not cancel within that period, they became fully enrolled in the subscription, and on the 27th day of the month would be charged for the next month. That information was not stated in the ad and was only provided to consumers during the third stage of the six-step sign-up process and in a list of frequently asked questions and answers that explained how the subscription service operated.
We considered the presentation of the promotion was likely to lead consumers to believe that signing up for and taking delivery of the free trial boxer shorts was the extent of their commitment, when that was not the case.We considered that information about the mechanics of the free trial and subsequent subscription was likely to significantly influence consumers' understanding of the promotion and decisions about whether or not to participate in the free trial. We therefore considered that the omission of that information from the ad was likely to mislead consumers and we concluded that the promotion breached the Code on that basis.
On that point ad (b) breached CAP Code (Edition 12) rules
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.
(Promotional marketing),
8.17
8.17
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:
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 ads must not appear again in the form complained of. We told On That Ass International BV to ensure future references to their free trial made clear they were offering a trial period for a subscription service. We also told them to ensure their future promotions did not omit significant conditions or information.
