Background
Summary of Council decision:
Five issues were investigated, of which four were Upheld and one was Not upheld.
Ad description
Claims on the website www.daygamedomination.com and in two e-mails promoted a set of DVDs aiming to teach men how to attract women:
a. The website stated "I'm going to ... [send] you a copy of the program for free ... Limited to the first 1,200 guys who say yes ... We know the program will sell out, so act now to secure your FREE COPY of the program ... I'm willing to send you these DVDs for FREE to check out for 30 days. Simply cover the tiny $14.95 shipping and handling fee and I'll send the entire DVD set your way to check out free-of-charge". Text in the "checkout" area of the website stated "YES! I WANT DAYGAME DOMINATION ... I understand that the program is mine FREE to try for a full 30 days, all I have to do is cover the shipping and handling. If I love the program, I simply do nothing, and I'll be billed in 3 affordable monthly instalments of $97". Text shown as part of an order form on the right listed the "Product Price" as "$14.95". Text at the bottom of the page stated "I'll try out everything in Daygame Domination for a full 30 days ... use it as I wish ... and if I'm not COMPLETELY satisfied, I can simply send the program back and never pay a single penny beyond the $14.95 in shipping and handling charges. If I love the program, I'll simply do nothing and be billed for the program over 3 months with just 3 easy payments of $97".
b. Text in an e-mail received on 17 May stated "Since pressing 'send' on yesterday's email, I've had over 1,500 questions/comments come pouring in to my inbox from guys all over the world ... And I've had another 32,650 (and counting) sign up for the Day Game Domination '10 minute head start' email notification list ... what I want to do now is answer some of the questions that I'm seeing the most frequently ... ARE THERE REALLY ONLY 1,200 COPIES OR IS THAT JUST MARKETING HYPE? Yup, 1,200 and that's it ... Most likely 12-24 months from now we will open things back up again, but as we always do, it will be at a higher price because we really do want to reward the fast action takers."
c. Text in an e-mail received on 18 May stated "Emails are flooding in, forums across the web are buzzing, and the 'early bird' list is now up to 32,000 ... last time we did something like this, we had over 10,000 people hammering the servers before we even went live and it ruined things for the guys who were actually patient and waited until we *actually* went live".
Issue
The complainant challenged whether:
1. the claim, in ad (a), "Product Price: $14.95" was misleading, because he understood that the product cost a total of $305.95;
2. the claims, in ad (a), that the product was "free" to try and that consumers would be sent a "free" copy were misleading, because a $14.95 shipping and handling fee was payable, and the product cost a further $291 if it was not returned by the end of the trial;
3. the claims in ads (b) and (c) regarding the number of people who had signed up to the "early bird" e-mail notification list were misleading and put undue pressure on recipients of the e-mails to make a purchase quickly, because he believed they implied a higher level of demand for the product than was the case;
4. the claim, in ad (c), "last time we did something like this, we had over 10,000 people hammering the servers before we even went live ..." was misleading and put undue pressure on consumers to make a purchase quickly, for the same reason; and
5. the claim, in ad (b), "Most likely 12-24 months from now we will open things back up again, but as we always do, it will be at a higher price because we really do want to reward the fast action takers" was misleading, because he understood that products returned to sale by the company at a later date were not always priced more highly than they had previously been.
Response
1. & 2. PUA Training Ltd (PUA) considered that the price of the product was made clear at numerous points throughout their advertising. They said the wording of the website made clear that the claim "free" referred to a 30-day period during which customers could watch and benefit from the training videos without having to pay for the program, beyond the cost of shipping and handling.
3. & 4. PUA stated that pre-launch interest in the product was extremely high, as was often the case for their infrequent product releases, and that references to the success of previous promotions should be taken in the context of launches which might have been joint ventures, with up to ten affiliate companies promoting the relevant product on their behalf. They provided a copy of a report showing the number of visitors to their website over a period of two days, which they said illustrated the level of interest generated by the launch. They also provided a copy of the shipping invoice from the manufacturer of the product, in order to demonstrate that only 1,200 copies had been produced, as they had announced.
5. PUA said they were in the process of adding new footage to the Daygame Domination product in preparation for its future release. They stated that when products were returned to sale at a later date, it was likely that they would be priced more highly because production costs would have increased and the product may have been updated. In addition, they usually tested a product at different price points in order to establish the best price at which it should be sold. They referred to one product which had increased in price by $600 since its launch, another which had sold out and was in the process of being enhanced before it was returned to the market, and a third, "Inner Game Installed", for which they had realised after release that the printed material needed to be corrected. They said the required amendments had since been carried out and the product was now at a standard where they might feel it justifiable to increase the price.
Assessment
1. Not upheld
The ASA considered that consumers were likely to understand the claim "Product Price: $14.95", in the context of an online order form, to indicate the amount of money they would be charged if they filled in the form and clicked on the button labelled "SUBMIT MY ORDER". We understood that the $14.95 charge covered the shipping and handling fee for the product, and that if the customer did not return the product within 30 days they would be billed a further $291, spread across three instalments. We considered that the full cost of the product if it was not returned was material information likely to affect a consumer's decision of whether or not to place an order, and therefore needed to be prominently stated in the ad in order to ensure they could make an informed choice. We noted, however, that text both beside and below the order form referred to the length of the trial period and the fact that the $14.95 charge covered shipping and handling costs and stated that consumers would be charged in three instalments of $97 if they did not return the product. On that basis, we were satisfied that consumers would understand the reference to the "Product Price" as being $14.95 in the online order form to signify only the upfront cost of obtaining the product, and would realise that further costs would be incurred if it were not returned within 30 days. We therefore concluded that the claim "Product Price: $14.95" was not misleading.
On that point, we investigated ad (a) under CAP Code (Edition 12) rule
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
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), but did not find it in breach.
2. Upheld
We noted that ad (a) referred to the cost of obtaining the product in a number of different ways; prominent text at the top of the page stated "I'm Going To ...[send] You A Copy Of The Program For Free ...", and further text shown in a box headed "WARNING!" beneath stated "We know this program will sell out, so act now to secure your FREE COPY of the program". In both cases, the word "free" was highlighted. Other parts of the website, including information on the "checkout" page from which it was possible to order the product, qualified the claim "free" with a reference to the 30-day trial period, and made clear that if the product was not returned within that timeframe the customer would be charged three instalments of $97. However, we also noted that customers ordering the product on a trial basis would be charged a $14.95 shipping and handling fee. The CAP Code stipulated that items must not be described as "free" if the customer had to pay packing, handling or administration charges for the product. Because the website claimed that Daygame Domination was "free" to try and that customers would be sent a "free" copy but a handling fee was payable, we concluded that the ad 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) 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. and 3.24.1 3.24.1 the consumer has to pay packing, packaging, handling or administration charges for the "free" product ("Free").
3. & 4. Upheld
We considered that consumers were likely to understand the claims regarding the number of people who had signed up for the "early bird" e-mail notification list and the number of people who had attempted to buy the previous product to mean that there would be a very high demand for Daygame Domination and that they should act quickly and register their interest in order to take advantage of the offer. Although the information supplied by PUA indicated that between 19 and 21 May their website had had over 13,000 unique visitors, ad (b) stated that "another 32,650" people had signed up to the e-mail notification list, and ad (c) referred to the total number as "32,000". We considered that figures relating to visitor numbers to the website were insufficient to support claims regarding the number of people who had signed up for the advance notification list. We further noted that no evidence had been supplied relating to the level of interest in the previous product launch. Because we considered that ads (b) and (c) implied a very high level of demand for the product which had not been substantiated, we concluded that they were misleading and placed undue pressure on recipients to make a purchase quickly.
On those points, ads (b) and (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), 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) 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. and 3.32 3.32 Marketing communications must not mislead the consumer about market conditions or the possibility of finding the product elsewhere to induce consumers to buy the product at conditions less favourable than normal market conditions. (Availability).
5. Upheld
We considered that the claim "Most likely 12-24 months from now we will open things back up again, but as we always do, it will be at a higher price because we really do want to reward the fast action takers" implied that every product that was returned to sale after its initial launch would be listed at a higher price than previously. PUA had referred to the process through which products were returned to the market, but had not demonstrated that the initial launch price was always the lowest price charged for their product. We therefore concluded that the claim was misleading.
On that point, the claim 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 3.7 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).
Action
The ads must not appear again in their current form. We told PUA Training Ltd not to refer to a trial as "free" if consumers had to pay packing, packaging, handling or administration charges, and not to make objective claims unless they could support them with substantiation.
CAP Code (Edition 12)
3.1 3.11 3.23 3.24.1 3.3 3.31 3.32 3.7
