Background
This Ruling forms part of a wider piece of work on online choice architecture, identified for investigation following complaints received and intelligence gathered by the ASA. See also related rulings published on 25 September 2024.
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Working with
Moonpig.com Ltd
10 Back Hill, London, EC1R 5EN
Ad description
Two in-app ads and a pop-up banner ad for Webloyalty, a shopper reward programme, seen in December 2023 and January 2024:
a. The first in-app ad, seen in the Domino’s Pizza mobile app at the end of the checkout process, featured text that stated, “Your order is complete. £20.87 cash back! Tap here to claim the above reward, credited onto your card, when you next place an order at Domino’s!” above a clickable button labelled “Continue”. Smaller text underneath that button stated, “By tapping above, you can join our partner programme for £18/month and claim your reward”.
b. The second in-app ad, seen in the Moonpig mobile app at the end of the checkout process, featured text that stated, “Your order is complete. £20.87 cash back! Tap here to claim the above reward, credited onto your card, when you next place an order at Moonpig!” above a clickable button labelled “Continue”. Smaller text underneath that button stated, “By tapping above, you can join our partner programme for 18 pounds/month and claim your reward”.
c. The banner ad, seen on the Asda website at the end of the checkout process, featured text that stated, “Your order is complete. £20.87 cash back! Tap here to claim the above reward, credited onto your card, when you next place an order at Asda!” above a clickable button labelled “Continue”. Smaller text underneath that button stated, “By tapping above, you can join our partner programme for £18/month and claim your reward”.
Issue
The complainant challenged whether:
1. ad (a) was misleading because the presentation of the options at conclusion of payment was unclear.
The ASA challenged whether:
2. ads (b) and (c) were misleading because the presentation of options at conclusion of payment was unclear.
Response
1. & 2. Webloyalty International Ltd t/a Webloyalty said that the first reward a consumer would receive under the cashback programme, which was referenced in the ads, was a welcome reward for those who joined the Complete Savings programme. They explained that the welcome reward was a fixed amount, although the amount could vary by partner, but confirmed all consumers would be offered the same reward on any given partner website.
They believed that the average consumer would interpret the word “reward” as being a welcome reward for joining the programme because the text under the “Continue” button stated, “By tapping above, you can join our partner programme for 18 pounds/month and claim your reward”. They also explained that when the “Continue” button was clicked, the following webpage made clear that the reward was contingent upon joining the Complete Savings website.
They highlighted that their ads only appeared at the end of a consumer’s online journey with a retailer and said that consumers were reminded several times of the fact that their transaction with the partner website was complete and that no further action was required. They referred to examples on the webpages preceding the ads, the order confirmation webpages in which the ads were seen and the ads themselves. They said that, prior to seeing the ads on the checkout page, text on the preceding order confirmation pages for each of the retailers would have signalled to consumers that their order would shortly be completed. They asserted that it would be unusual for consumers to have to complete an additional stage after payment had been taken. Because of that, they believed consumers would not believe it was necessary to click the “Continue” button seen in the ads to finalise their purchase.In relation to the webpages in which the ads were seen, Webloyalty believed that it was clear a consumer’s order was complete.
In ad (a), they referred to the text “We’ve got it”, along with the inclusion of an estimated delivery time, and a button which linked to a “Pizza Tracker”, which they said made clear to the consumer that their transaction with Domino’s Pizza was complete.
They also said that ad (b) included the text “Order Confirmation” and that ad (c) stated, “Thanks for your Order” with an estimated order arrival date, which again they believed made clear that no further steps were required of the consumer to complete their order.
With reference to the ads themselves, they believed that the text “Your order is complete” made it clear to consumers that they did not need to click on the “Continue” button. Furthermore, they said that text was emphasised in its formatting whenever possible. In addition, they re-iterated that the text below the “Continue” button disclosed the nature of the offer, and that a consumer would be joining a paid-for partner programme.
Discussing the “Continue” button further, Webloyalty explained that its purpose in the ads was to direct interested consumers to their enrolment page, in order to find out more about the cashback programme and decide whether or not to join. They stated that the webpage included information which detailed the price, billing terms, benefits of the programme and the subscription method. They highlighted that consumers were not able to enrol into the cashback programme immediately after clicking on the “Continue” button and would always be taken to the enrolment webpage. Furthermore, Webloyalty believed that the ads were limited in space beyond their control, and because of that, they had ensured that all material information had been included in the enrolment webpage.
They also believed it was clear that the ads, and the cashback service itself, were offered by a third-party service. They said that consumers expected ads to be displayed at the end of the consumer journey, and therefore, they would understand that these ads were marketing communications. Furthermore, they said, in most cases, the ads appeared as a pop-up, which also conveyed the commercial nature of the ad to consumers. They re-iterated that it was also made clear from the content of the ads themselves, because they stated that a consumer must “join a partner programme”, “join our partner programme for £18”, as well as the enrolment webpage, which included details such as the Webloyalty logo and text that stated they were a “preferred partner of [relevant merchant]”. They said that consumers expected ads to be displayed at the end of the consumer journey, and therefore, they would understand that the ads were marketing communications. Furthermore, they said, in most cases, the ads appeared as a pop-up, which also conveyed the commercial nature of the ad to consumers.However, they said that they were willing to amend the ads. In future, they would be including the words “third-party” before “partner programme” in the ad and would no longer use the “Continue” button. They also highlighted that they had previously contacted the CAP Copy Advice team in relation to previous iterations of the ads.
Domino’s Pizza UK and Ireland Ltd t/a Domino’s Pizza did not believe that the average consumer would be misled by ad (a) because it was clear that their order had been completed. They believed that their webpage, the page the ad was seen on, clearly demonstrated that through the text “WE GOT THIS” and “You’ve ordered for Delivery! It should be with you between […] Get excited for your order”. They asserted that was sufficient to demonstrate to the average consumer that their order was complete and had been paid for. They re-iterated that the average consumer would not reasonably read that text and understand that a further step was necessary to complete their order. They further argued that this point was demonstrated by the “Pizza Tracker” at the bottom of the ad, which enabled consumers to track their order.
They also commented on the content and presentation of the ad itself. They highlighted text in the ad clearly stated, “Your order is complete” and they believed a consumer would interpret the term “reward” as a reference to the stated cashback amount of £20.87. They believed that the headline text and the explanatory qualification which outlined the monthly cost of joining the partner programme were provided in immediate proximity to the “Continue” button and stated that they were in the same font size as the text in the button. In addition, they believed the text “Tap here to claim” and “By tapping above” made the purpose of the “Continue” button clear. Furthermore, because the ad offered a cash back service, they believed that it would be unusual for such an offer to be made prior to an order being placed and purchased, and therefore, consumers would understand that their purchase was complete.They also stated that the wording relating to the “partner programme” in the ad made clear that the offer was being provided by a partner of Domino’s rather than Domino’s directly and that there was third-party involvement. They highlighted that text was in the same font size as the other wording relating to the cashback offer, and as such, they considered that would not be missed by the average consumer. They said that impression was reinforced by the landing page that consumers were taken to when clicking the “Continue” button and that the “Complete Savings” logo, a Webloyalty brand, was included in a prominent position on that webpage.
Asda Stores Ltd t/a Asda said that it was clear that the ad was for the Webloyalty cashback scheme. They emphasised that the ad was a separate pop-up banner and contained a logo for the scheme clearly and prominently, and as such, they believed it was clearly identifiable that it was an ad for a third party. In addition, they said that the ad had a very different appearance to Asda’s website branding. They highlighted that all of the buttons that the consumers would have clicked as part of the checkout process were green and white or blue and white and that the button which featured in the ad was black and white. Immediately under the logo, the ad stated, “Your order is complete”, which Asda said made clear to the consumer that their transaction was complete. They also said that there could be no ambiguity as to the commercial nature of the ad because of the text “you can join our partner programme for £18/month”. Furthermore, they explained that they had a loyalty programme called “Asda Rewards” and that would be widely known by consumers. On that basis, they did not believe it was reasonable to assume that a customer would understand that the “Complete Savings” cashback scheme promoted by the ad was an Asda loyalty scheme.
They asserted that the presentation of the options was clear within the ad because consumers were presented with a binary choice: to click on the “Continue” button and join the cashback scheme; or to click the ‘X’ button and close the ad. They also highlighted that the order confirmation page was clearly positioned behind the ad, which they believed further emphasised the separation from a customer’s Asda order.Moonpig.com Ltd t/a Moonpig said that Webloyalty created the content used for the ad and they said they had relied on Webloyalty to ensure compliance with the CAP Code as stipulated in their contract. However, they believed it would be clear to the average consumer from the ad that the transaction with Moonpig had finished and that the advertised cashback scheme was from a third party. They noted that there was explicit reference to the consumer “next placing an order at Moonpig” and that the loyalty programme was a “partner programme”. They further detailed that they did not have a partner programme and that Moonpig were known for being a greeting card retailer rather than providing a loyalty programme. In addition, they highlighted that the “Continue” button only appeared after payment had been taken and consumers were informed that their order was complete. They believed that the text “Your Order is Complete” was clear and that was sufficient for the average consumer to conclude that the transaction had been finalised.
They further stated that the branding, design and layout of the sign-up page accessed by clicking the “Continue” button were different to that of Moonpig, and therefore that it was obvious it was operated by a third party. For example, they said that the colours used in the ad were not Moonpig colours and their name did not feature on the sign-up page. They also highlighted that the ad did not include the Moonpig logo. They said details of the Webloyalty cashback scheme were provided if a consumer chose to click the “Continue” button, which further emphasised that the promotion was not run by Moonpig. However, they acknowledged that amending the ad to include a description of the programme as being from a “third party” would be beneficial to consumers.
Assessment
1. & 2. Upheld
The ASA considered that its starting point was to assess how the notional average consumer, who was reasonably well-informed and reasonably observant and circumspect, would be likely to view the ad.
We first assessed ad (a). We noted that it appeared centrally aligned within the app, and featured a large black button labelled “Continue” against a white background. Because of its central position, and the black background of the button which contrasted with the rest of the page, we considered that the button was visually prominent and, therefore, it was likely to be the first aspect of the page that consumers would notice.We also considered the ad within the context it was seen; specifically, the steps completed before reaching that page and the progression of the consumer journey. We noted that the ad was seen within the Domino’s app after an order had been selected and payment had been taken. We considered that, because consumers would look for visual clues to determine how they proceeded on a webpage, and given the visual prominence of the button, that consumers would have likely assumed that they needed to click the “Continue” button to conclude their browsing activity. We further considered that the phrasing of “Continue” gave the impression that it was necessary to click that button in order to conclude their activity on the webpage. Furthermore, we noted that there was nothing in the content of the ad placed upfront to indicate to consumers it was a marketing communication for a third party, and we considered that reinforced the impression that consumers would click “Continue” on the basis that it would finalise their activity in relation to the purchase they had just made.
Whilst we considered that at least a significant minority of consumers would understand that the “Continue” button would allow them to exit that webpage, we noted that there was accompanying text above the button, which we considered a proportion of consumers would engage with. Consumers were offered “£20.87” which was described as a “reward”, and that they would be able to “claim […] when you next place an order at Domino’s”. For those who did read that text, we considered they would understand that they had earnt the cashback in relation to their recently finalised transaction and clicking the button would enable them to claim it, free of charge, on their next order. We considered that rewards were normally offered in exchange for, or as recompense for, doing a particular action. Therefore, we considered that the term “reward” suggested that the cashback was offered as a complimentary benefit to consumers in exchange for placing their order via the retailer. We also considered that impression was furthered by the word “claim”, which suggested that the consumer had already fulfilled their obligation to receive the reward, and that receiving it was not dependent on paying for a subscription. In addition, we considered that the amount of money offered as part of the reward, “£20.87”, was not a round number, and that consumers would likely assume it was calculated based on the total of their purchase, further reinforcing that they had earnt a specific amount of cashback on the order they had just placed. In addition, and as referenced above, we considered it was not clear that the ad was a marketing communication for a third party. We considered the text “when you next place an order at Domino’s” reinforced the impression that the ad originated from the retailer and suggested that the cashback would be paid by Domino’s.
We next assessed ads (b) and (c). Similarly to ad (a), ad (b) contained a centrally aligned large black button labelled “Continue” against a white background. Whilst we acknowledged that in ad (b) certain elements of text were displayed in a pink font, we considered that the button remained visually prominent and would likely be one of the first aspects of the ad that consumers noticed. Ad (b) also appeared in the same context as ad (a); i.e., within the Moonpig app after an order had been selected and payment had been taken. However, we noted that ad (b) appeared as a pop-up and the background of the app had been darkened to focus attention on the pop-up. Because of that, and the stage at which it appeared during the consumer journey, we considered that consumers were likely to infer the pop-up required a choice related to their order and would have likely assumed that it was necessary to click the “Continue” button in order to end their browsing activity.
Furthermore, there was nothing in the content of the ad placed upfront to signify that the ad was for a third-party savings programme, which we considered would further indicate to consumers that it was necessary to click the “Continue” button.Ad (c) was seen on the Asda website at the end of the checkout process and appeared as a banner ad at the bottom of the webpage. Whilst we considered it was less prominent than the placements of ads (a) and (b), we considered consumers, looking for visual clues as to how to proceed, would still likely notice the large “Continue” button, given the prominence of the black button against a white background. We also noted that ad (c) contained a “Complete Savings” logo, along with the standard text “you can join our partner programme from £18/month”, which both Webloyalty and Asda believed made clear that the ad was for the Webloyalty shopper reward programme.
We did not consider that the average consumer would necessarily be aware of the loyalty programme or familiar with the “Complete Savings” logo and its significance. Furthermore, we considered the text “partner programme” was ambiguous as to its meaning and could be interpreted by consumers to mean a loyalty programme directly run by the retailer, which we understood was commonplace. We therefore considered that the inclusion of that logo and the text within the ad did not make clear that it was an ad for a third party.
The same text above the “Continue” button was seen in both ads (b) and (c) as for ad (a) and we considered that, for those consumers who did engage with the text, their impression would be similar to that of ad (a). Whilst we, again, considered that this text was likely to be missed, for consumers who had seen it, we considered that they would understand that clicking the “Continue” button would allow them to receive cashback, for free, directly from the retailer in question.
However, we understood that the “Continue” button in all ads led to a landing page on the Webloyalty website, whereby consumers could subscribe to pay a monthly fee in order to receive cashback across a number of different retailers. We further understood that the advertised cashback reward was an introductory incentive offered by Webloyalty, rather than the retailer, only to consumers who paid to join the scheme and that consumers were not eligible for the reward based on their recent transaction. Because we considered that consumers would either understand that the “Continue” button was a necessary step to finalise their transaction on the retailer website, or that they had earnt a specific amount of cashback on the order they had just placed which they could claim for free when they next ordered from the retailer, when that was not the case, we considered that the presentation of the options in the ads was likely to mislead.We acknowledged the advertisers’ argument that it was clear to consumers that by clicking the button they would be joining a paid-for subscription, because below the “Continue” button, text stated “By clicking above, you can join our partner programme for £18/month and claim your reward”. However, we considered that phrasing, specifically “can join our partner programme […] and claim your reward”, implied that consumers could receive the reward independently of joining the programme and did not make clear that subscribing to the partner programme was a prerequisite for claiming the reward. In any case, we noted the placement of that text was underneath the “Continue” button, and we considered that, for those consumers who inferred that the “Continue” button was the next necessary step in the consumer journey, that text would not be immediately obvious. We considered that they would have likely already clicked the “Continue” button before engaging with the text below the button. Furthermore, we noted that in ads (a) and (b) that text was less prominent than the text located above the button which described the £20.87 cashback reward. In ad (a) the relevant text which explained the monthly fee for the partner programme was in standard type face, in comparison to the text describing the cashback reward which was bolded, and in ad (b) the relevant text was significantly smaller than the text describing the cashback reward. In any case, we considered that the text “join our partner programme” would likely be interpreted by consumers, in the absence of any indication to the contrary, to mean the retailer’s own loyalty programme and that text was not sufficient to indicate that they were ads for a third-party loyalty scheme.
We also noted the advertisers’ belief that it would be obvious to consumers that their transaction was complete from the context in which the ad was seen, and they would, therefore, understand that they were not required to click the “Continue” button. We noted the elements which may indicate to consumers that their order had already been finalised by the time the ad appeared, such as information regarding their order confirmation number, order trackers and delivery information. Ad (a) included an order confirmation number, an estimated time of arrival for the order and an order tracker at the bottom of the page and ad (c) included similar information, apart from the tracking functionality. However, we noted that ad (b) appeared as a pop-up upon the order being confirmed, and whilst text within the pop-up stated “Your order is complete”, we considered that a consumer was less likely to realise that their purchase was finalised before they were presented with the “Continue” button.
Next, we considered the way in which consumers would engage with those elements, given the stage of the consumer journey and the prominence of the button within all three webpages. We considered that, throughout the consumer journey of their purchase, consumers would have been prompted to look for buttons or other visual stimuli which allowed them to progress on the relevant retailer webpage or app. We therefore considered that consumers would view the “Continue” button within that context, and having been primed to click on such visual cues previously in the consumer journey, the choice architecture and inclusion of the prominently displayed “Continue” button would prompt consumers to click that button on the assumption that it was necessary to conclude their activity with the retailer.
Consumers were, in our view, likely to click the “Continue” button either because they believed it would end their consumer journey or because it appeared they would receive a free cashback reward based on their order from the retailer. Given that clicking on the button would in fact result in consumers being taken to a sign-up page for a third-party loyalty shopper scheme with a monthly fee, we concluded that the presentation of the options was likely to mislead. We welcomed the advertisers' assurance that they would amend their advertising.
The ads breached CAP Code (Edition 12) rule 2.1 and 2.3 (Recognition of marketing communications) 3.1 and 3.3 (Misleading advertising).
Action
The ad must not appear in its current form. We told Webloyalty International Ltd t/a Webloyalty, Domino’s Pizza UK and Ireland Ltd t/a Domino’s Pizza, Asda Stores Ltd t/a Asda and Moonpig.com Ltd t/a Moonpig to ensure that their ads were clearly identifiable as ads for a third-party subscription scheme and that the presentation of choices was clear.
