ASA Adjudication on Damartex UK Ltd

Ad

The first page of a mailing from Damartex UK (Damart) was headed "SPECIAL GIFT FILE ... FREE A MAGNIFICENT BRANDED GIFT FROM OUR AUDIO-VISUAL Collection" and claimed "... Your gift points allocation of 760 points confirms that you have been officially awarded a magnificent gift from our: Audio-Visual Collection ... More than 750 Gift Points DVD Home Cinema Audio System 24" Widescreen TV .. Your FREE gift will be awarded from the collection of gifts listed above and despatched when you place an order from Damart within the next 14 days!" The second page of the mailing stated " … Your Gift Points Allocation Sticker is official confirmation that, as a new customer that has been recommended to Damart, you have scored a fantastic 760 points! This top score entitles you to receive a superb product from our Audio-Visual Collection. It could be the 24" widescreen television, branded audio system or even the DVD Home Cinema system* ...". The asterisk was linked to text at the bottom of the page that stated "* See gift Allocation rules below for full details". Small print stated "… 5. The allocation of free gifts in the Damart Audio-Visual Collection Loyal Customer Reward Campaign is not the result of a random draw. Free gifts will be allocated on the following basis: All customers selected to take part in the Damart Loyal Customer Reward Campaign have been awarded a number of loyalty points. Of those customers that have been awarded in excess of 750 points, the customer who has placed the highest net order value will be awarded a 24" Widescreen TV. The next customer (in descending order) will be awarded a DVD Home Cinema system. All other customers who have made an order with Damart will receive an AM/FM Audio System …".

Issue

The complainant, who had been awarded the Audio System gift, believed that the mailing misleadingly implied that recipients with more than 750 gift points had an equal chance of receiving the DVD Home Cinema or the 24" Widescreen TV as they did the Audio System.

CAP Code (Edition 11)

Response

Damart said the mailing stated that respondents would receive one of the gifts shown in the table on the front page. They said all recipients had an equal chance of being awarded the DVD Home Cinema or 24" Widescreen TV if they met the qualifying criteria explained in the terms and conditions on the second page of the mailing.

They said they had previously tested the mailing to monitor reactions and had received no negative feedback. They argued that, because the mailing had been sent to approximately two million customers and attracted only one complaint, it was clear that recipients did not find the mailing misleading.

Assessment

Upheld

The ASA considered that the list of awards on the first page of the mailing did not make clear which item (the Audio System) would be received by all but two recipients and which (the Home Cinema and the TV) would be received by only two recipients; we considered that the list misleadingly implied that recipients with more than 750 gift points had a better chance of receiving the Home Cinema and the TV than they actually had.

We noted text on the second page stated "Your Gift Points Allocation Sticker is official confirmation that, as a new customer that has been recommended to Damart, you have scored a fantastic 760 points! This top score entitles you to receive a superb product from our Audio-Visual Collection. It could be the 24" widescreen television, branded audio system or even the DVD Home Cinema system". We noted that statement was linked by an asterisk to a footnote that stated "See gift Allocation rules below for full details". Although the gift allocation rules in the small print at the bottom of the second page explained that the Home Cinema and TV were available only to the respondents who made the two most valuable orders, we considered that that information was not prominent enough to suitably qualify the overall impression created by the mailing that recipients had a reasonable chance of receiving the Home Cinema or the TV. We considered that the Audio System, which was a gift, should have been clearly distinguished from the Home Cinema and TV, which were, to all intents and purposes, prizes.

The ad breached CAP Code clauses 7.1 (Truthfulness), 27.4 (Sales promotion rules), 35.1 and 35.2 (Other rules for prize promotions).

Action

We told Damart to ensure that, in future mailings, they made clear which items were gifts that would be received by almost all recipients and which were prizes that would be received by only a few and that, if they included a gift in a list of other prizes, they distinguished clearly between the two in the list itself or in body copy next to the list, not merely in a footnote or small print.

We noted the TV and Home Cinema were available to the two participants who placed the largest net orders; because participants would not know whether their order would be one of the largest, those who placed large orders were, to all intents and purposes, engaged in a game of chance as to whether they would be awarded the TV or Home Cinema. We noted lotteries had been defined in case law as "a distribution of prizes by chance where the persons taking part in the operation, or a substantial number of them, make a payment or consideration in return for obtaining their chance of a prize" and were, in most cases, illegal. We urged Damart to seek legal advice in future on the lawfulness of such promotions.

Adjudication of the ASA Council (Non-broadcast)