ASA Adjudication on UK Incentives & Promotions Ltd

Ad

Two direct mailings for a prize draw, and an accompanying brochure for nutritional supplements from UK Incentives and Promotions (UKIP).

a. One mailing showed a picture of a Mini car and the text stated "UNIQUE AWARD ID:XXX MINIMIUM VALUE: £2500 … Dear XXX Congratulations, As part of our 2007 customer reward program you have been allocated one of this years awards. This is not a competition! Your award has been pre-allocated and I can now PERSONALLY GUARANTEE that you will receive one of the following: BMW MINI ONE or £10,000 House Makeover or £10,000 CASH … £2500 Advantage Award - £2500 CASH £1000 Plasma TV … GUARANTEED VALUE £2500+ To secure your award and enable us to confirm that your delivery details are correct, all you need to do is to return your completed Award Release Form in the envelope provides together with your insured delivery charge of only £20 which is fully refundable if you are unhappy in any way … I would like to take this opportunity to congratulate you as one of this year's lucky customers … Please claim your award within 7-days so that we can re-allocate it to someone else if you do not want it". The priority award release form included the instructions "Please remember to include your insured delivery & processing charge … Term & Conditions … The Closing date for this promotion is December 31st 2007. Incomplete Priority Award Release Forms will not be accepted … Award details 1. BMW Mini One to base spec … 3. Advantage award to a value in excess of £2500 including 5 holidays worth £1850 alone + other significant offers … ".

b. Another mailing showed a picture of a Mini car and the text stated "FINAL NOTICE LAST CHANCE TO CLAIM YOUR GUARANTEED AWARD Dear XXX Re: Your Unclaimed Award …we can't hold this award indefinitely and therefore this is now your last chance to claim … have been pre-allocated one of this years awards:: BMW MINI ONE or £10,000 House Makeover or £10,000 CASH … £2500 Advantage Award - £2500 CASH £1000 Plasma TV … GUARANTEED VALUE £2500+ To claim your award simply complete the Award Release Form … with your insured delivery charge of only £20. IMPORTANT Failure to act within the next 7 days from the date of this letter will nullify your preferential status. We are not obliged to offer this status again to you in the future, so don't miss out - ACT NOW! …".

c. A brochure for nutritional supplements that showed a grey haired couple gardening on its front cover and the text stated "UK Living Well … Remain Active and Feel Better! … Remove stress from your life! … Lose the PAIN!". Inside the brochure, on every other page, small-print text stated "Statements made in this catalogue are not intended to diagnose, treat, cure or prevent disease. Individual results vary. The products offered are food supplements and not medicines and should be taken as part of a healthy balanced diet and lifestyle". The brochure showed many pictures of supplement packaging, examples include: alpha lipoic acid with the text "… It can help increase Glutathione levels which plays a big role in dissolving toxic substances in the liver. Alpha Lipoic Acid may be beneficial for those suffering from Diabetes … high cholesterol levels, glaucoma or nerve damage resulting from diabetes."; emu oil with the text " …is reputed to promote cellular regeneration and may be used to help reduce the pain and inflammation associated with Arthritis or injury …"; multimineral & zinc with the text "Zinc plays an important role in preventing a variety of disorders including … growth difficulties, diabetes, arthritis, hypertension and wound healing" and borage oil with the text "Borage oil has been shown to be beneficial for a wide range of conditions including … cholesterol and Blood Pressure, Rheumatoid Arthritis, Alcoholism, the Immune System, Obesity and Childhood Hyperactivity".

Issue

Two complainants challenged whether mailings (a) and (b) misleadingly implied the recipients were luckier than they were, by listing a variety of high value awards and implying that the recipients were entitled to an award exceeding £2,500 in value;

One complainant challenged:

2. whether mailing (b) misleadingly implied the time available in which to claim was very limited, whereas the closing date for the promotion was eight months after the mailing was sent; and

3. whether the brochure was irresponsible, because it included claims for many of the products that referred to treatment or prevention of serious medical conditions such as arthritis, diabetes, bronchitis, cancer, heart disease and stroke, and could discourage essential treatment by a suitably qualified health professional.

CAP Code (Edition 11)

Response

1. UK Incentives and Promotions (UKIP) said the mailings listed all the awards that were available to be claimed and that, because the mailing stated that the recipient was eligible for an award valued at over £2,500, the minimum the complainant would have received was the £2,500 Advantage Award.  They believed the word "Congratulations" was not misleading, because the recipients had been pre-allocated an award.  They explained that the Advantage Award, worth in excess of £2,500, was the award allocated to most recipients, but said two people had already claimed the plasma television and lap top computer respectively: they provided testimonials from those claimants.  They provided a sample copy of the Advantage Award booklet and explained it comprised sponsored items including five holiday offers valued at over £1,850 in total plus a £750 gift certificate redeemable against merchandise in the UK World Gift Catalogue.  They explained that the holidays were awarded by UKIP's parent company European Vacations Ltd in order to allow potential customers to sample their holidays.  They said the holidays included free accommodation and travel, subject to the operator's terms and conditions and that other optional services were also made available to the customers who took up that offer.  They pointed out that there was no expiry date by which the holidays had to be taken and that the certificates could be passed to friends and family to make use of.  They said their local Trading Standards Department had no concerns about the way they conducted their campaign.  

2. They said the listed awards were available until the closing date of 31 December 2007, but that the award allocated specifically to each recipient was only guaranteed and reserved for a period of seven days after the mailing was originally sent.  They explained that the "Final Notice" was sent because the allocated award had not been claimed by another customer, to give the complainant another opportunity to claim their award.  They said they would not have sent further correspondence after the "Final Notice" mailing but that, providing another customer had not claimed the award, the award could be claimed by the complainant up to the closing date.

3. They said the claims in their brochure were not intended to be medicinal claims and that none of the claims implied a supplement could cure an ailment.  They explained that they had referenced the health benefits that the various supplements were widely believed to have within the nutritional supplement marketing industry.  They pointed out that the disclaimer "Statements made in the catalogue are not intended to diagnose, treat, cure or prevent disease. Individual results vary. The products offered are food supplements and not medicines and should be taken as part of a health balanced diet and lifestyle" was included on every spread of their brochure.

Assessment

1. Upheld

The ASA noted that, with the exception of the Advantage Award and the Italian holiday, the list of awards comprised items such as £10,000 cash or a plasma TV that were awarded to a lucky few people only.  We acknowledged that two people had already received high value awards.  However, we understood that most recipients would be allocated the Advantage Award booklet of home shopping, travel and lifestyle discount vouchers and offers.  We considered that readers would infer from the text "Congratulations" and the list of high value items including the "£2500 Advantage Award", that those awards were allocated to the lucky few.  Because we understood that the Advantage Award consisted of voucher offers and that, to reach a £2,500 value, the recipient would need to take up most of the offers including five separate holiday offers, we concluded that the claim "Advantage Award" and its inclusion in a list of high value items implied that most recipients were luckier than they were.

On this point, the ads breached CAP Code clause 35.3 (Rules for prize promotions).

2. Not upheld

We acknowledged UKIP's explanation of the reallocation of unclaimed awards.  We noted the text of the mailing stated "LAST CHANCE TO CLAIM YOUR GUARANTEED AWARD" and "Please claim your award within 7-days so that we can re-allocate it to someone else if you do not want it".  We understood that most recipients would be allocated the Advantage Award, but we also understood that a few recipients would be allocated a high value item, such as £10,000.  We considered that, because the award was reserved for seven days and it could be a highly desirable item such as a new car or kitchen, the ad did not breach the Code by implying the time available in which to claim the reserved award was very limited.

On this point, ad (b) was investigated under CAP Code clause 35.4 (Rules for prize promotions), but we did not find it in breach.

3. Upheld

We noted the disclaimer that was included on nearly every second page of the brochure, but were nevertheless concerned that the brochure included references to serious medical conditions such as arthritis, diabetes, bronchitis, cancer, heart disease, migraines and stroke.  We were also concerned that the brochure included claims that went beyond maintenance properties for certain supplements, for example nettle leaf, black cohosh and soya isoflavones among many, by claiming that they could be used to treat or alleviate symptoms of medical conditions including: menopause; hay fever; arthritis; asthma and bladder infections.  We concluded that the reference to serious medical conditions and the claims which went beyond simple maintenance claims were irresponsible and could discourage consumers from seeking essential treatment for serious or prolonged conditions.  

On this point, the brochure breached CAP Code clauses 2.2 (Responsible advertising), 50.3 (Health & beauty products and therapies and 50.11 (Medicines).

Action

The ads should not be repeated.  We told UKIP to seek advice from the CAP Copy Advice team to ensure that their ads complied with the CAP Code in future.

Adjudication of the ASA Council (Non-broadcast)