Ad description
A direct mailing from Bakker.com, received on 28 March 2017, included text on the envelope which stated “URGENT…Something went badly wrong and we really want to make it up to you … Specimen Compensation Cheque enclosed! Compensation Gift Stamp enclosed”. The letter enclosed included text which stated “This letter is strictly personal! …You have missed out on a number of important benefits. But we are about to generously make it up to you today!” and “… something went wrong during sorting and posting mail for you so you have actually missed a number of posts from us! Officially confirmed! A cheque for up to £12,500! A FREE* premium gift worth £39.50!”
Issue
The complainant, who believed the ad misleadingly implied that they were had won compensation or a prize, challenged whether the ad had breached the Code.
Response
Plantiflor Ltd t/a Bakker Spalding said they had noticed something had gone wrong with their customer selection during the season and good customers had not received some of the regular mailings they should have. They said this was due to human error and provided database entries in support of their explanation, which they said demonstrated the complainant had missed a number of mailings. They said as it was not possible to send the missed mailings they decided to create a new mailing just for those people. They said any customer ordering got a designated free gift as a thank you for their order and, in this instance, they decided to improve the free gift offer. They said the cost of the gift was higher than the usual standard free gifts, hence why they called it a premium gift. They believed they had made clear the gift of the storm lantern was “free with an order” as it was stated in the terms and conditions and the word “free” was qualified with an asterisk.
They also said they provided two further compensation offers. Firstly, a £5 voucher consumers could use against a future order. They said sometimes people preferred cash, so they could return the voucher to them for a £2 cheque. Secondly, they could enter a prize draw with additional prizes as compensation, to rectify missing out on previous mailing which could be won in their prize draw. They said at no point did they say the consumer had won a prize, only that they “could” win one.
Assessment
Upheld
The ASA considered that consumers were likely to understand the envelope text which stated “URGENT…Something went badly wrong and we really want to make it up to you … Specimen Compensation Cheque enclosed! Compensation Gift Stamp enclosed!” to mean that there was a genuine administrative error on the advertiser’s behalf and that the advertiser aimed to rectify this by awarding the recipient a compensatory gift. We further considered that the text in the letter which stated “This letter is strictly personal! …You have missed out on a number of important benefits…” and “…something went wrong during sorting and posting mail for you so you have actually missed a number of posts from us! Officially confirmed!” reinforced that impression.
We noted the advertiser’s explanation that something had gone wrong with their customer selection during the season and good customers had not received some of the regular mailings they should have and that the gift the customer would have received had they placed an order, was a superior gift to the standard ones received. We further noted the explanation that, due to human error, the complainant had not received a number of mailings and the advertiser’s response was, upon discovering this, to create a tailored mailer for customers such as the complainant. We also considered the evidence supplied to us in support of that explanation.
We did not consider that the advertiser had demonstrated that it was a genuine mistake or the evidence supplied credibly explained why the particular complainant had received this mailer and considered that it was unlikely that the gift described was intended to compensate for, and or rectify, an administrative error. We understood that the advertiser regularly created direct mailing marketing communications that awarded gifts and offered prizes and considered that this mailer was very similar to those other marketing communications. We considered the ad misleadingly implied that complainant would receive a gift because of a genuine administrative error, even though the gift was superior to what was typically offered, as alleged by the advertiser.
In addition, 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 must incur a cost to claim the prize or other equivalent benefit. We considered that the ad gave the impression that the gift of the solar lamp would be redeemable without a payment being required. However, we understood that consumers were required to make a purchase in order to receive a cheque and the solar lamp gift, and it was therefore not the case that the recipient would receive a cheque, which they could simply cash, or the gift.
We also understood that the cheque was in fact a £5 voucher which could be redeemed for a £2 cheque, and that consumers would be entered into a draw where it was possible to win £12,500. The CAP Code stated that the distinction between prizes and gifts, or equivalent benefits, must always be clear. We considered the text on the envelope and in the letter which stated “Specimen Compensation Cheque enclosed!” and “A cheque for up to £12,500!” was likely to give the impression that the recipient would receive a cheque that they would simply be able to cash. We noted the several references throughout the direct mailer to the same amount of money and considered that consumers were likely to understand that it was related to the amount they would receive in the form of a cheque.
We therefore considered that the ad misled about the amount of the cheque, the cost they must incur to claim the gift, the fact that all consumers would be entitled to the cheque as part of a purchase, and the prize draw.
We considered each part of the mailing and noted the use of some qualifying terms including “… could also win you as much as £12,500”, “A cheque for up to £12,500” and “you have received the appended specimen compensatory cheque in your name that could win you up to £12,500**…”. However, we did not consider that this qualifying language made sufficiently clear that the recipient had not won a cheque worth £12,500 and instead would be entered into a prize draw upon making a purchase. We considered that this qualifying language contradicted the impression created by the rest of the ad and was insufficient to remove this impression.
We therefore considered that the ad falsely claimed the complainant had won a prize or equivalent benefit when there was a cost involved and that it misleadingly gave the impression that the complainant had been awarded the prize of a cheque that they could simply cash. Also, it misled as to the amount of the cheque the complainant would receive, and the distinction between that cheque and the prize draw.
The ad breached CAP Code (Edition 12) rules 3.1 (Misleading Advertising), 3.7 (Substantiation), and 8.19, 8.21 and 8.21.1 (Prize Promotions).
Action
We told Plantiflor Ltd to ensure future ads did not falsely imply a consumer had won a prize if they had not, or imply a consumer was entitled to a prize or equivalent benefit if there was a cost involved; did not imply consumers were receiving gifts or prizes because of administrative errors if that was not the case; and did not mislead about what consumers would receive as a gift.
