Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A page on a website and two promotional packs by Practical Publishing International for a craft magazine, Papercraft Essentials:
a. The website www.practicalpublishing.co.uk, seen on 27 August 2017, featured a web page that promoted the Papercraft Essentials magazine. Text on the page stated “Price: £5.99, Frequency: 4 weekly … Every issue comes with free crafty gifts worth at least £6 …”.
b. The first promotional pack for Issue 150 of Papercraft Essentials was seen sold at Sainsbury’s in August 2017. The outer packaging of the pack featured text that stated “FREE 3 DIES & 20 STAMPS”. A sticker on the outer packaging included text that stated “EXCLUSIVE TO Sainsbury’s BONUS magazine & A4 stamp set”.
c. The second promotional pack for Issue 150 of Papercraft Essentials was seen sold at Tesco in August 2017. The outer packaging of the pack featured text that stated “FREE 3 DIES & 20 STAMPS”. A sticker on the outer packaging stated “FREE CO-ORDINATING PAPER PACK EXCLUSIVE TO TESCO”.
Issue
Three complainants, who understood that the promotional packs were sold at £7.99 and £6.99 at Sainsbury’s and Tesco respectively, and believed that the price of the packs had been inflated to recover the costs of the additional items, challenged whether the following claims were misleading and could be substantiated:
1. "free ... gifts" in ad (a);
2. “bonus” in relation to the additional magazine and A4 stamp set in ad (b); and
3. “free” in relation to the co-ordinating paper pack in ad (c).
Response
1., 2. and 3. Practical Publishing International Ltd stated that the magazine Papercraft Essentials came out every four weeks and was usually sold for £5.99. For the particular issue seen by the complainants, Practical Publishing International stated that the standard package that included a ‘free’ gift of gnome die and stamp set was priced at £5.99 and was sold at that price by all retailers, except Tesco and Sainsbury’s. The Sainsbury’s promotional issue was priced at £7.99 and contained the ‘free’ gift of gnome die and stamp set, and ‘bonus’ items of a full magazine and stamp set. The Tesco promotional issue was priced at £6.99 and contained the “free” gift of gnome die and stamp set, and “bonus” items of a gnome paper pack that co-ordinated with the “free” stamp set.
Practical Publishing International stated that, in relation to ad (a), the promotional items that were described as “free gifts” could not be regarded as being included routinely as part of the package because those free gifts” would vary widely from issue to issue. They therefore believed that the use of the “free” claim in that context was not misleading. They also stated that it was industry practice within the magazine market to supply free gifts with each issue.
Practical Publishing International said ad (b), the Sainsbury’s promotional issue, carried a sticker which stated “Exclusive to Sainsbury’s, Bonus magazine and A4 stamp set”, because those items were available specifically in the Sainsbury’s edition. They said the Sainsbury’s copies were price differently to the copies available elsewhere, because it was common practice within the magazine industry to supply the supermarkets periodically with exclusive bumper packages, at prices reflective of the extra items contained within. They pointed out that the packaging of the Sainsbury’s edition did not claim that the extra items contained within were “free”. They said that was in contrast with the claim “Free 3 dies and 20 stamps” referenced on the poly bag itself, which were supplied free with all copies available nationally, regardless of the place and price of purchase. They also stated that the term “bonus”, based on a dictionary definition, would be regarded as something good or desirable, and given alongside something else. They also said that definition would suggest that the wording “bonus” indicated something extra would be given in addition to something else that was already paid for. They said in the context of the ad, a “bonus” would be at the discretion of the provider and because the additional promotional items were also an “extra and unexpected advantage”, they believed that the claim “bonus” was not misleading.
In relation to the ad (c), the Tesco promotional issue, Practical Publishing International stated that it was similarly created as a supermarket-specific premium package. They said the Tesco issue should have carried a sticker using the word “Bonus”, rather than the word “Free”, to describe the additional co-ordinating paper pack contained within. Practical Publishing International stated that an accidental error meant the wrong wording had been used; it was an isolated incident and they had taken measures to ensure that the word free was not used in such circumstances in the future.
Assessment
1. Upheld
The ASA considered that consumers were likely to understand the claim “free … gifts”, which was used to describe the promotional items that came with the magazine in ad (a), to mean that those items were genuine additional benefits that they would receive if they purchased the magazine.
However, we noted from ad (a) that each issue of the magazine was priced at £5.99 and every issue came with “free crafty gifts”. That meant that the magazine was not usually sold at £5.99 without any promotional items and that those promotional items did not have a standalone price, separate from the price of the magazine, notwithstanding that the promotional items might be different with each issue. We therefore considered that the promotional items that were described as “free … gifts” were included in the price of each magazine issue. We therefore concluded that the claim “free … gifts” was misleading.
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. (Misleading advertising), 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 3.25 3.25 Marketers must not describe an element of a package as "free" if that element is included in the package price unless consumers are likely to regard it as an additional benefit because it has recently been added to the package without increasing its price. (Free).
2. Upheld
We noted that ad (b), which was the Sainsbury’s promotional pack, included a sticker that stated “EXCLUSIVE TO Sainsbury’s BONUS magazine & A4 stamp set”, in addition to the claim “FREE 3 DIES & 30 STAMPS” on the packaging. We considered that consumers would understand from the ad that the three dies and 20 stamps set were promotional items that were included in the standard edition for that particular magazine issue. We further considered that they would interpret the “bonus” claim to mean that the additional promotional items of the extra magazine and A4 stamp set were exclusive to Sainsbury’s edition. We also considered that they would interpret the “bonus” claim, in the context of the ad, to have the same meaning as “free” in that they would expect to receive the extra magazine and A4 stamp set without having to pay more than the cost of the standard issue.
The CAP Code required that marketing communications must not describe the item as “free” if the cost of response, including the price of a product that the consumer must buy to take advantage of the offer, had been increased, except where the increase resulted from factors that were unrelated to the promotion. We noted Practical Publishing’s comments that it was industry practice to produce exclusive bumper editions for specific supermarket outlets and those would be sold at prices reflective of the extra promotional items that came with those editions. In this instance, the Sainsbury’s edition was priced at £7.99, which was £2 more expensive than the standard issue. Because we considered that consumers were likely to expect from the ad that the “bonus” items were “free”, and because the cost of the Sainsbury’s edition had been increased, we concluded that the claim “bonus in ad (b) was misleading.
On that point, ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.24.2 3.24.2 the cost of response, including the price of a product that the consumer must buy to take advantage of the offer, has been increased, except where the increase results from factors that are unrelated to the cost of the promotion, or (Free).
3. Upheld
We noted that ad (c), which was the Tesco promotional pack, included a sticker that stated “FREE CO-ORDINATING PAPER PACK EXCLUSIVE TO TESCO”, in addition to the “FREE 3 DIES & 20 STAMPS” on the packaging. We considered that, as with ad (b), consumers would understand from the ad that the three dies and 20 stamps set were promotional items that came with the standard edition. We further considered that consumers were likely to expect from the “free” claim, made in relation to the co-ordinating paper pack, that they would receive the paper pack as an additional promotional item that was exclusive to the edition available at Tesco, at no extra cost to the standard issue.
We noted that the Tesco edition was priced at £6.99, whereas the standard edition, which also included the promotional items of three dies and 20 stamps, were priced at £5.99. We noted Practical Publishing’s comments that the use of the wording “free” on the sticker had been an accidental error and welcomed their willingness to amend similar ads in the future. However, in order for consumers to take advantage of the exclusive Tesco offer and receive the additional promotional paper pack, they would be required to pay more than the price of the standard issue. Because of that, we concluded that the “free” claim used to describe the co-ordinating paper pack in ad (c) was misleading.
On that point, ad (c) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.24.2 3.24.2 the cost of response, including the price of a product that the consumer must buy to take advantage of the offer, has been increased, except where the increase results from factors that are unrelated to the cost of the promotion, or (Free).
Action
The ads must not appear again in their current form. We told Practical Publishing to ensure that future ads did not misleadingly refer to the promotional items that consumers would receive in every issue of the magazine as “free” or “bonus”, or to use those terms to refer to extra items that consumers would receive in addition to the promotional items included in every issue, if the price of the magazine had been increased to recover the cost of those items.
CAP Code (Edition 12)
3.1 3.17 3.24 3.24.2 3.25 3.7 8.2
