ASA Adjudication on Nike (UK) Ltd

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An e-mail (a) from Nike stated “FALL 2007 PRODUCT RELEASES OCTOBER FOOTWEAR APPAREL ACCESORIES”. It included photographs and text relating to new Nike products. A second e-mail (b) was received later the same day. Text in the subject field stated “Sorry we emailed you earlier”. The e-mailed message to the recipient stated “Sorry about clogging up your inbox While sending out a press email this morning we accidentally included you in our mailing list. Sorry again for clogging up your inbox, but we hope you liked the sneak peak of our product anyway. Regards, The NikeSB Team”.

Issue

The complainant, who believed e-mail (a) was marketing material and questioned whether it had been sent in error as implied, challenged whether e-mail (b) was disingenuous and misleading.

CAP Code (Edition 11)

Response

Nike explained that on 4 October an e-mail was sent out by their agency, which invited recipients to a Nike sponsored event.  They said their general mailing database consisted mainly of people who had attended Nike events over the past four years; they said all of the people included on that list had been emailed previously regarding previous events.

They said, on 8 October, they sent out their regular monthly e-mail to retailers and media contacts, which was intended as an information update to industry members and not as a marketing tool aimed at the public.  They explained that, unfortunately, that e-mail, ad (a), was distributed in error by their agency to the same recipients who had been invited to the Nike event in an e-mail of 4 October.  They further explained that, having realised the error, the agency then sent out an e-mail (ad (b)) apologising to recipients.  

Assessment

Not upheld

The ASA noted e-mail (a) had been sent in error to the wrong mailing list and that, having realised the error, e-mail (b) had been distributed to the same list.  

While we understood that the error had led the complainant to question whether the e-mails were actually marketing material and the approach used by Nike, therefore, disingenuous, we were satisfied on this occasion that that had not been the case.  

We investigated e-mails (a) and (b) under CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 22.1 (Recognising marketing communications and identifying marketers) and 43.4c (Database practice) but did not find them in breach.

Action

No action necessary.

Adjudication of the ASA Council (Non-broadcast)