Background
Summary of Council decision:
Two issues were investigation, both of which were Upheld.
Ad description
A TV ad and website for a mobile phone trade up offer:
a. The TV ad showed a variety of applications on the Galaxy Note II and the voice-over stated "Trade up now to a Galaxy Note II and you could get a free Tab 2 or money off selected Samsung products". At the end of the ad on-screen text stated "T&Cs apply, selected smartphones, 16+".
b. The website, www.samsung.com, stated "Trade up now to a Galaxy S III, Note II or S III mini... You could receive a free Galaxy Tab 2 10.1 worth £279 or other discounted Samsung devices, when you trade in your old smartphone*". Small print stated "Free and discounted product offer only available when selected smartphones are traded in. An embedded video explained the offer and a "Frequently asked questions" link directed readers to a page with information about the promotion.
Issue
1. One complainant challenged whether ad (a) was misleading because he understood that only a very limited number of phones were eligible for the free product under the trade up offer.
2. One complainant challenged whether ad (b) was misleading for the same reasons.
Response
Samsung Electronics (UK) Ltd (Samsung Electronics) said the Trade Up promotion allowed consumers purchasing a new Galaxy Note II, Galaxy SIII or Galaxy SIII mini smartphone to trade in one of a number of selected smartphones and receive a free Galaxy Tab or money off a range of Samsung products. Over 30 smartphones, including a range from Apple, Blackberry, HTC, Nokia, Samsung and Sony Ericsson could be traded in to receive money off selected Samsung products, including the Galaxy Tab 2. Of those devices, and at the time the complaints were submitted, the iPhone 4 (8GB, 16GB and 32GB), iPhone 4S (16GB, 32GB and 64GB) and the Samsung Galaxy SII could be traded in for money off selected Samsung products or a free Galaxy Tab 2. Because the trade-in values for smartphones were volatile and could change daily they did not advertise the level of discount or the smartphones that could be traded in to receive a free Galaxy Tab 2. Instead, consumers entered the details of their old smartphone on a website, www.expansys.com/samsung-trade-in.aspx, operated by a service provider on behalf of Samsung Electronics and which showed the discounts available and whether or not a Galaxy Tab 2 was available to them. Consumers were directed to this website when they clicked on the "Find out what your old smartphone is worth - START NOW" link on the Trade Up promotion page on the Samsung website, www.samsung.com/uk/galaxyupgrade/. The terms and conditions for the promotion were made available on both websites and made clear that depending on the smart phone traded in, consumers could receive a free or discounted Samsung product. They also stated the website allowed participants to see which smartphones were included in the promotion and the discounted price.
1. Ad (a) promoted the Samsung Galaxy Note II and during the voice-over on- screen text displayed at the bottom stated "T&Cs apply, selected smartphones, 16+". This made clear the offer was for selected models only and that terms and conditions applied. When combined with the claim that participants "could" get a free Tab 2 or money off, Samsung Electronics believed this made clear that those wishing to purchase a Galaxy Note II were able to trade in a selected smartphone and get either a free Tab 2 or money off selected Samsung products. They believed the ad did not imply that participants would definitely receive a free Galaxy Tab 2 if they traded in their smartphone and that the small print stated clearly that the promotion was limited to selected smartphones.
Clearcast agreed with Samsung Electronics' comments and did not believe ad (a) was misleading. They were aware not all smartphones could be traded in for the Tab 2 or the money off offer, but considered the on-screen text stating "T&Cs apply, selected smartphones, 16+" made this clear. The voice-over "Trade up now to a Galaxy Note II, and you could get a free Tab 2, or money off selected Samsung products" also made clear from the word "could" that consumers were not guaranteed to receive the Tab 2.
2. The online ad was the main page on the Samsung UK website that related to the Trade Up promotion and was the location consumers visited if they wanted to participate. The claim "... when you trade in your old smartphone*" directed readers to short terms and conditions that stated "Free and discounted product offer only available when selected smartphones are traded in ... the value of traded in devices and discounts offered may change daily ... View full terms and conditions" and further directed readers to the full terms and conditions. The link to the full terms and conditions was in bold and underlined and the website included a video explaining the offer and a link to "Frequently asked questions" which listed the smartphones included in the offer. Consumers could receive a Galaxy Tab 2 or discounts on other Samsung products and this was further made clear by the "Start Now" link which invited visitors to find out what their smartphone was worth.
Assessment
1. Upheld
The ASA considered viewers were likely to understand from the voice-over "Trade up now to a Galaxy Note II and you could get a free Tab 2 or money off selected Samsung products" that if they traded in their phone for a Galaxy Note II they would receive a free Tab 2 or money off selected Samsung products. We also considered they would understand from the claim "... a free Tab 2 or money off ..." that they had a choice between receiving either the Tab 2 or money off. However, this was not the case. The voice-over did not refer to "smartphones" and while the on-screen text stated "T&Cs apply, selected smartphones, 16+", it did not clarify that the free Tab 2 and money off selected products had separate conditions. While the discounted devices offer was conditional on the trade in of over 30 different smartphones, the free Tab 2 offer was conditional on the trade in of three. Although Samsung considered the three different storage capacities of the iPhone 4 and the iPhone 4S constituted separate smartphones, which along with the Samsung Galaxy SII, made seven, i.e. the total number of smartphones eligible for the free Tab 2, we considered that consumers were likely to understand the iPhone 4 and iPhone 4S as only two different smartphones. We also considered viewers were likely to expect that they could receive a Tab 2 if they traded in their old phone to a Galaxy Note II. We considered the condition that three smartphones could be traded in for consumers to receive the free Galaxy Tab 2 was significant and therefore needed to be clearly stated in the ad. We therefore concluded the ad was misleading.
Ad (a) breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Misleading advertising) and
3.10
3.10
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification).
2. Upheld
We considered readers would understand from ad (b) that by trading in their old smartphone for a Galaxy S II, Note II or S III mini they could receive a free Galaxy Tab 2 10.1 worth £279 or other discounted Samsung devices. An asterisk directed readers to small print that stated "Free and discounted product offers only available when selected smartphones are traded in". The "Frequently asked questions" linked to a page listing all models that could be traded in to receive the discounted products and the small print directed readers to the full terms and conditions. However, the full terms and conditions did not specify that, out of the listed models, receiving the free Tab 2 was conditional on trading in only three smartphones. Furthermore, we considered the condition that the Tab 2 offer was only available for consumers who traded in three smartphones was significant information likely to influence consumers' decision or understanding about the promotion and therefore needed to be made clear in the body copy. We therefore concluded that the ad was misleading and breached the Code.
Ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
Advertisements 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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification),
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.
(Sales promotions) and
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 their current form. We told Samsung Electronics (UK) Ltd to make clear that the Tab 2 was only free for those who handed in one of a very limited range of smartphones.
