Background
Two issues were investigated, of which one was Upheld and one was Not upheld.
Ad description
A promotion administered by Unilever UK Ltd across social media platforms and third-party websites:
a. A tweet from the Magnum UK Twitter feed stated "SHARE A SELFIE OF YOU & YOUR MAGNUM #MAGNUMREGENTST FOR THE CHANCE TO WIN A HENRY HOLLAND DRESS WORTH £5000"
b. A page on www.magnumdresscode.com that outlined the terms and conditions of the promotion stated "Each winner must take and provide Henry Holland with such body measurements as he requires in order to create the winner's dress. Each winner is solely responsible for ensuring that their measurements, as provided to Henry Holland, are accurate. Neither Henry Holland nor the Promoter shall be responsible for any dress failing to fit its winner as a result of inaccurate measurements being provided".
c. A promotional page on www.asos.com stated "Using the iconic and indulgent Magnum Classics range as his muse, Henry and his House of Holland team have created a limited edition run of 25 dresses, each heavily embellished and painstakingly hand-stitched and worth about £5,000. To win, simply pick the Henry Holland dress out of a fashion line-up and it could be yours".
d. A post on the Magnum Facebook page that featured an image of a model wearing a brown and cream sequined dress. Text stated "WIN A HENRY HOLLAND MAGNUM 25 DRESS" and gave details of how to enter the competition.
e. A post on the Magnum Facebook page stated "One of the last #MagnumDressCode dresses designed by Henry Holland is now up for grabs!" and gave details of how to enter the competition.
Issue
The ASA received two complaints from promotion winners:
1. two complainants, who were disappointed with the dress they received, challenged whether the prizes had been awarded as described in the marketing communications; and
2. one complainant, who believed that ad (b) implied that the dresses would be handmade by Henry Holland himself, challenged whether the ad was misleading.
Response
1. Unilever UK Ltd t/a Magnum stated that the promotion was run in conjunction with Henry Holland and his team, who were responsible for designing and creating the dresses for the winners to the sizes provided. They said that all appropriate care was taken in making, packing and delivering the dresses to the winners but it appeared that the dresses delivered to two of the winners were unfortunately damaged during delivery. They stated that they became aware of these issues when they were contacted by two of the winners, who were concerned about the look of the sequins, their attachment to the garment, the labels used and the fit of the dresses. Magnum stated that, due to the very delicate nature of the dress design, and the fact that each sequin was sewn on by hand, damage to the garments during transit, or during wear by the winner, was always a risk. They said that the team involved tried to reduce the risk of damage during transit as far as possible by wrapping the garments appropriately in multiple layers of bubble-wrap and rigid packaging. Magnum stated that upon receiving these initial complaints they responded to both offering to arrange for their dresses to be altered and/or repaired (as appropriate) by Henry Holland's team, together with a House of Holland voucher for £250 as a gesture of goodwill. They said that although the offer was initially accepted by both winners, both subsequently changed their minds. They were confident that the dresses sent out to all winners were manufactured to the quality expected but, as the winners who had contacted them declined to return their dresses for alteration and/or repair, they could not comment any further on any damage that may have been caused during transit or wear.
With regard to the valuation of the dresses at £5,000, Magnum stated that this figure had been set by Henry Holland. Prior to creating the Magnum 25 dress, Mr Holland had reportedly not created any equivalent bespoke, one-off dresses for sale, as the raw materials would have been too expensive. As such, they stated that the valuation for the competition dresses was based on the formula that Mr Holland would normally use to calculate the retail price of a ready-to-wear dress. The cost price of the dress was multiplied by 2 to find the wholesale price, which was then multiplied by 2.8 to reflect the expected increase applied by a retailer to find the off-the-shelf value. As the cost price of the dress was £1000 (pre-VAT), for which Magnum provided an invoice, the formula indicated a retail price of £5,600. They stated that, as the calculation related to off-the-shelf items, and the Magnum dresses were limited edition, hand-made and tailored to the winners' measurements, the valuation could reasonably have been significantly higher than this. Magnum stated that they and Mr Holland decided to err on the side of caution and use the standard retail price calculation, which they rounded down to £5,000.
Magnum understood that one of the complainants suggested the valuation of £5,000 was unreasonable taking into account the cost of dresses available on the House of Holland website. Magnum stated that this was not an appropriate comparison because the Magnum inspired dress was part of a very limited edition by House of Holland, specially designed by Mr Holland to commemorate the brand's 25th anniversary. Each dress was hand stitched by the House of Holland team with every single sequin sewn on by hand, and made to order to the measurements provided by the winners. As a result the creation of each dress involved a considerable amount of man hours and could therefore not be compared in value to those available on the House of Holland website, which were made to standard sizes, using standard manufacturing processes and involving a significantly lower level of detail and base cost. Magnum stated that they were therefore confident that the valuation by Mr Holland of £5,000 for each of the dresses was appropriate.
Magnum added that they had received no complaints regarding the dress quality or valuation from the other 23 competition winners, so they felt that the issues faced by the two complainants were isolated ones. They stated that, aside from the two winners who had rejected the offer of repairs or adjustments, two other winners had requested spare sequins (which were provided) and one more felt the neck opening of the dress was too small for her, but the appropriate alterations were currently being performed by Mr Holland's team, and that the winner had no further concerns. Magnum stated their belief that the prizes were awarded as described in the marketing communications. They also stated that they believed they and Henry Holland had done everything reasonably possible to ensure that the valuation of the prizes was calculated on an objective and reasonable basis, and when concerns had been received about the quality of the dresses had attempted to resolve these promptly.
With regard to ad (c), ASOS.com Ltd (ASOS) stated that they had collaborated with Magnum to co-promote the prize draw and give away four of the 25 dresses available. They stated that the copy from ad (c) was taken directly from a press release drafted by Magnum and approved by Mr Holland. They said that Magnum approved the use of the copy and all creative content for the ASOS microsite on which ad (c) was placed. ASOS stated that they asked Magnum to substantiate the quality and value of the dresses and that Magnum informed them that the dress was a limited edition product designed by Mr Holland and created by House of Holland, that each dress would be embellished with sequins hand-stitched by the House of Holland team, that they would be tailored to each winner's measurements, and each dress was worth £5000. They stated that they had no reason to question this, given that House of Holland, Magnum and the advertising agency had provided and approved the prize description themselves, and therefore had no reason to believe that the copy was inaccurate or misleading. ASOS stated that they were not responsible for the quality of the prize, and were only involved in developing and executing the mechanic of the promotion on their website, the actual quality and fulfilment being solely Magnum's responsibility (which they had noted in their terms and conditions). They stated that they had carried out all due diligence to ensure that the description of the prize was accurate and that they were given clear and sufficient assurances from Magnum and House of Holland that this was the case, and that they therefore had no reason to believe that ad (c) would mislead consumers. ASOS stated that they stocked House of Holland products on their site and had had no significant issues with the quality or pricing of such products. They also stated that they had not received any complaints themselves about the issues.
2. Magnum stated that the intention was always that the dresses would be designed by Mr Holland, and made by his team. They said the wording referred to in ad (b) was solely intended to make it clear that the tailoring of the dresses would be done via the provision of measurements by the winners to Mr Holland and his team (rather than the fitting being done in person), and that the winners would therefore be responsible for taking and providing the correct measurements to the team. They stated that in ad (b), the use of the words 'Henry Holland' referred not to Mr Holland as an individual, but to Henry Holland as a brand. Magnum stated that this was supported by other promotional material, such as the statement "Henry and his House of Holland team have created a limited edition run of 25 dresses ..." in ad (c). They stated that it was common practice, in the fashion industry (and particularly the couture fashion industry), to use the name of a designer to refer to the fashion house or brand with which they are involved and that in the majority of circumstances the use of a designer's name is accepted as meaning only that the designer has overall responsibility for the design of products made by that label or fashion house. They noted that in some circumstances, consumers are aware that the designer is no longer even involved with the product design, yet the designer's name is still used to refer to the fashion house, such as with those where the designer has died. Magnum stated that the use of a well-known designer's name would not therefore be commonly taken to mean that items made by that label or fashion house were made by the designer themselves. They said that in relation to this promotion in particular the intricate level of detail in the dress design and the fact that each dress was hand-stitched meant that the number of man-hours required to make each dress was considerable. Given the number of dresses created, Magnum considered it would seem inconceivable that Henry Holland would be making each dress himself, and that consumers would therefore not have been misled by ad (b) into believing that Henry Holland would be hand stitching each of the 25 dresses himself.
Assessment
1. Upheld
The ASA noted that ads (a) and (c) stated that the dress was worth £5000 and "about £5000" respectively, and considered that consumers would understand from these statements that the dress had an objective and verifiable value of this amount, and that the promoters should therefore be able to demonstrate that this was the case. We noted ASOS's statement that they promoted the competition in line with information provided by Unilever and House of Holland, but noted that under the CAP Code they held joint responsibility. We understood that, in the absence of existing made-to-measure or one-off lines against which to make a price comparison, House of Holland had set this value by scaling up from the cost price of the dress to the retail value using their methodology for ready-to-wear clothing, then rounding down. We were satisfied that the cost price of the dresses, including materials and man-hours, was in the region of £1000 and that using this as a starting point was therefore reasonable. However, we noted that the cost−wholesale−retail price chain was not followed by the prize dresses, which were manufactured and distributed in a very different way to off-the-shelf clothing, and were therefore not satisfied that this was a sufficiently robust way in which to determine their absolute value. We appreciated Magnum's assertion that the hours of hand-embellishing made the dresses more valuable than items solely produced by machine, and agreed that this was likely to be the case, but considered that the way in which the concrete value of £5000 had been reached was unsatisfactory.
We noted that ads (b), (c), (d) and (e) referred prominently to Henry Holland as the designer of the prize dresses, and considered that consumers were likely to be aware that Mr Holland's brand was a well-known brand at the luxury end of the market. We therefore considered that consumers could reasonably expect that a dress from this source would be of high quality with attention paid to detail. We also noted that ad (c) specifically referred to the embellishment and hand-crafting of the prizes, which would further underline this impression for consumers seeing the ad. We considered that the reference in ad (b) to measurements being required would imply to consumers that sufficient measurements would be taken to ensure a reasonable fit with no significant issues, but appreciated that this method of fitting would necessarily lead to the potential for some minor imperfections in the way the dresses fitted some of the winners. We understood that the complainants had been disappointed with their dresses for a variety of reasons, some of which related to the quality of the garments (such as the robustness of the stitching and the fit of arm and neck openings) and some of which related to the creative decisions taken by the designer (such as the material used for the sequins and the size of the hook-and-eye closures). We considered that satisfaction with the design choices was a matter of taste, and that as long as the elements shown in the ad were present on the prizes, and that any elements not shown were not so significantly unexpected that they should have featured in the marketing communication, then in this regard the prizes were awarded as described. However, we were concerned that a total of four winners had reported sufficient missing sequins as to note it to Magnum, and three had reported problems with the fit of the arm and/or neck openings (two to the point of being unable to wear the dress, which we considered constituted a significant and avoidable sizing issue). Although we appreciated that embellished dresses were likely to be more fragile than others, we considered that consumers would not understand from the marketing communications that a dress of the quality implied by the ads would be likely to be so damaged during transportation and wear. We considered that, given the problems reported with the dresses, the disappointment felt by the complainants was not unreasonable and concluded that the prizes had not been awarded as described because they did not match the expectation created by the implications of the marketing and the value stated in the ads had not been substantiated.
On this point ads (a) - (e) 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), 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. and 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 8.15.1 8.15.1 Promoters must award the prizes as described in their marketing communications or reasonable equivalents, normally within 30 days. (Administration).
2. Not upheld
The ASA understood that the complainant considered the phrase "Each winner must take and provide Henry Holland with such body measurements as he requires in order to create the winner's dress" implied that Mr Holland himself would be making each dress. We understood that it was common, particularly with fashion labels based on the name of a specific designer, for the individual to be synonymous with the team of workers who actually constructed the garments for that label, and considered that consumers would generally be aware of this. We understood that Mr Holland had designed the dresses and that his brand had overseen manufacture of the dress, with the finishing touches being applied in-house. We considered that consumers would broadly understand from the ad that Mr Holland would not make each dress personally, and concluded that the ad was therefore not misleading.
On this point we investigated ad (b) under 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), but did not find it in breach.
Action
The ads must not appear again in their current form. We told Unilever UK Ltd and Asos.com Ltd to ensure that prizes in future promotions were awarded as described and to avoid causing undue disappointment to participants.
