Background
Summary of Council decision.
Five issues were investigated, all of which were ‘Upheld’.
Ad description
Claims on SlimtonePlus.com's own website, a paid for ad on Facebook with click through content and ads on two-third party websites:
a. A website ad for a diet supplement, seen at www.slimtoneplus.com included the claims "Claim your TRIAL BOTTLE Today" and "Try Slimtone Plus WORRY FREE!" . The online order form stated "Product SlimTone Plus ... Price £0.00 Sub-Total: £0.00 Shipping Fee: No delays - All Orders Shipped From the UK £2.49 Total £2.49". Further text on the website included "IF you feel Slimtone Plus is not for you, cancel within 14 days from the day you order to avoid the purchase fee of £37.50 per item and enrolment in the auto-shipment program, which sends you a fresh supply of SlimTone Plus every 30 days, starting 30 days after your trial period starts, at the low price of £37.50 per item" [order page terms and conditions] and "when each month's supply ships we will automatically charge the monthly fee of £75.00 plus £4.95 postage and packing … Shipping and handling may range from £4.95 to £9.95 and is subject to change without notice" [Term and conditions page]. The website also included the text "SlimTonePlus is adored by our customers", followed by "At 34, I had a revelation. I was almost 35 year [sic] and my body was not what I dreamed. I realised that my body was no longer the same as that of my 20 year [sic] and was frightened by the picture I saw in the mirror and wondered how I would be and [sic] at 40. I discovered this weight loss programme and the SlimTonePlus programme and lost 5kg in 2 weeks. After consuming it for a month I lost 9kg". This text was followed by two pictures of a woman's torso where she was pinching her excess body fat, alongside a slim woman sitting on bathroom room scales.
b. A paid for ad on Facebook stated "Kate M. Loses 21kg Kate Middleton loses 7kg a week with these 2 shocking diet tips".
c. Clicking on the ad on Facebook linked to a page with the URL daily-7-news.com which was titled "Womens' health consumer product digest" and headed "Raspberry Ketone Diet Exposed: Miracle Diet or Scam?". It was followed by a first person written account which reported weight loss in relation to SlimTonePlus. Text at the bottom of the web pages included "Click Here To Get A Free Trial Of SlimTone Plus Enter promo code ‘SLIM’ to reduce shipping from £4.68 to £2.49!" Clicking on the given link connected to the order page on the advertisers own website.
d. Clicking on the ad on Facebook and other online ads which linked to websites presented as being 'Channel 4' and 'newsonlineweekly' were headed "Raspberry Ketone Diet Exposed: Miracle Diet or Scam?". It was followed by a first person written account and reported weight loss in relation to SlimTonePlus. Text at the bottom of the web pages included "Click Here To Get A Free Trial Of SlimTone Plus Enter promo code ‘SLIM’ to reduce shipping from £4.68 to £2.49!". Clicking on the link connected to the order page on the advertisers own website.
Issue
Eleven complaints were received:
1. All complainants challenged whether the implied references to a 'free trial' in ads (a) (c) and (d) were misleading because they understood customers would automatically be charged for a subscription if they did not return the product and cancel the subscription within 14 days.
2. Seven of the complainants challenged whether the ads on websites (c) and (d) were clearly identified as an ad because they believed they were presented as genuine news editorials.
3. One of the complainants challenged whether the "7kg a week" weight loss claims in relation to ad (b) were compatible with good medical and nutritional practice.
4. One of the complainants challenged whether the first person written accounts in relation to the testing of the product in ads (c) and (d) were genuine.
5. One of the complainants challenged whether the testimonials in ad (a) were genuine.
Response
SlimTonePlus stated that it took the complaints seriously and that they would take the issues to their advertising agency to ensure that they were fully compliant with all rules and regulations. They stated that the promotion in question would be ending shortly. They did not specifically respond to the points of complaint.
Assessment
1. Upheld
The website included prominent claims such as "Tell us where to send your trial bottle!" and "Claim your Trial Bottle Today!" along with an invoice (on the order form) which listed the trial product as costing "£0.00" and a delivery cost of "£2.49. The ASA considered that consumers would therefore understand that there would be no financial commitment other than the delivery of the trial product.
Although text at the bottom of ad (a) stated "IF you feel Slimtone Plus is not for you, cancel within 14 days from the day you order to avoid the purchase fee of £37.50 per item and enrolment in the auto-shipment program, which sends you a fresh supply of SlimTone Plus every 30 days, starting 30 days after your trial period starts, at the low price of £37.50 per item" we noted this was not connected to the references to the trial elsewhere on the website and was not presented in such a way that it was likely to be seen by consumers. We further noted additional terms and conditions on the website stated that the monthly fee was in fact £75 per month and considered that this contradicted the implied claim that the monthly charge was £37.50.
Although ads (c) and (d) connected to the order page where information was provided about the £75 (plus postage and packing) costs that would be incurred if the order was not cancelled within 14 days, the ads themselves made prominent references to a "trial bottle" without any reference to the cancellation policy and the charges that would applied if that policy were not followed.
We also noted the order form on the website and the separate order page on the website linked to ads (c) and (d) included a pre-ticked box next to text which stated that the visitor agreed to the conditions of the site. We considered this was likely to increase the chances of visitors completing an order for the trial product without being made aware of the charges that would be incurred if the product was not cancelled within 14 days.
We considered that the ads failed to make sufficiently clear that potential customers were required to cancel their trial within 14 days in order to avoid incurring the initial £75 plus postage and packaging fee and therefore concluded that ads (a), (c) and (d) were misleading.
On this point ads (a), (c) and (d) 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),
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) 9.1 and 9.3 (Direct Marketing).
2. Upheld
Ads (c) and (d) included the text "[name], our Health and Diet columnist recently put the Acai Diet to the test", and provided a report of weight loss in relation to another diet aid and "We at [named publication] are a little skeptical [sic] and aren't sure that we've seen any real proof that the berry works for weight loss. So we decided to put these products to the test. What better way to find out the truth than to conduct our own study?" and then went on to report on their findings based on specific claims on the SlimTonePlus website. We understood that because the "editorial" piece directed consumers to the order page on the Slimtoneplus website it was likely that the content of that editorial was controlled (directly or indirectly) by SlimTonePlus. We considered that the websites were presented in such a way as to not only suggest that they were entirely independent from SlimTonePlus but to imply they were editorial pieces that had been written by established publishers, namely "Channel 4", "Heath News Weekly" and "Daily 7 News". We considered that this provided an implied legitimacy to the findings of those "editorials". We considered that ads (c) and (d) were not clearly presented as marketing communications and that they were therefore misleading.
On this point ads (c) and (d) breached CAP Code (Edition 12) rules 2.1, 2.4 (Recognition of marketing materials),
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).
3. Upheld
Ad (b) which appeared on Facebook, referred to a rate of weight loss of 7 kg. Because the ad made specific references to rates of weight loss which are not permitted for foods, we concluded that the ad breached the Code.
On this point the ad (b) breached CAP Code (Edition 12) rules 13.10.1 13.10.1 Health claims in marketing communications for food products that refer to a rate or amount of weight loss are not permitted. (Weight control and slimming) and 15.6.6 15.6.6 Health claims that refer to a rate or amount of weight loss. (Food, food supplements and associated health and nutrition claims).
4. Upheld
Ads (c) and (d) included a first person account of the testing that purportedly had been independently carried out by someone for the publication. Because evidence had not been supplied to demonstrate that the 'editorial' or written accounts were genuine, we concluded that the ads were misleading.
On this point ads (c) and (d) 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
3.7
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).
5. Evidence was not supplied to demonstrate that the testimonial in ad (a) was genuine and we therefore concluded that its inclusion was misleading.
On this point ad (a) breached CAP Code (Edition 12) rules 3.45 3.45 Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it. and 3.47 3.47 Claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer. (Endorsements and testimonials).
Action
The ads should not appear in their current form.
CAP Code (Edition 12)
13.10.1 15.6.6 3.1 3.10 3.17 3.3 3.45 3.47 3.7 3.9 9.1 9.3 9.5
