ASA Adjudication on JPG Software

Ad

A magazine ad and follow-up material for a business opportunity.

a. The ad stated "FREE DEMO OF AMAZING SOFTWARE IN ACTION! SOFTWARE YOU WILL NEVER LOSE WITH! Go from £100 To £500 In Minutes With No Risk! Or Earn £100s Each Night While You Sleep! We are developing unique online casino & blackjack program reading software. With our Blackjack Read & Voice Software all you would have to do is sit at your PC & play. 100% accurate, the software tells you before a hand is dealt, and before you have placed your bet whether or not you are going to win … we have done a 7-minute (approx.) demo video of the software in action, so you can … see it working ... Plus available now, auto-play robot software that will do everything for you! Yes it does all the betting, calls and plays the hand etc ... using the auto-play robots you can earn £100's a day ... We also now offer … a platinum software package that includes home set up and the consultant winning you 50% of the fee you paid before he leaves, or a full refund, plus full onsite backup. AGENT RECEIVES Sales Literature ... No Advertising Required & Guaranteed Income Plan available (subject to T&Cs) We send you at least 100 (to Unlimited) leads every week / month to send out and every week you do not receive an order from these leads we guarantee you a payment of (1st year only) (Deposit required for 1st set of leads which will be refunded in full immediately you have sent them all out) ... At least £1000 each sale Completely Free software package. For a free info pack and a copy of the demo Video. Please ring requesting our 'AGENTS INFO PACK' ...".

b. Part of the follow-up material that was sent with the demo stated "STOP PRESS - VERY LATEST SOFTWARE INFORMATION … NEW BLACKJACK SOFTWARE HAS JUST BEEN ADDED TO OUR NEW DEVELOPMENT PACKAGE ... See a copy of this software in the demo film NO DELAY - READY FOR YOU TO USE IMMEDIATELY ...".

Issue

1. The complainant, who sent off for and received the free demo and subsequently paid £2,000 for the full blackjack software, challenged its availability, because he was told it had not yet been released and was sent a Texas Hold'em tutorial instead.

The ASA challenged whether:

2. the claim "SOFTWARE YOU WILL NEVER LOSE WITH!" could be substantiated;

3. the earnings claims for the software, in particular the claims "Go from £100 to £500 In Minutes With No Risk!" and "Or Earn £100s Each Night While you Sleep!", could be substantiated;

4. the marketing communication as a whole made clear the cost of taking up the business opportunity and

5. the claim "At least £1000 each sale!" could be substantiated.

CAP Code (Edition 11)

Response

JPG Software (JPG) said respondents to the ad did not apply to be an agent directly; they had to request an information pack first. They said they currently had their full complement of agents and had withdrawn the ad in October 2006. They pointed out that the magazine ad stated " ... We are developing unique online casino & blackjack program reading software ..." and " ... Plus available now, auto-play robot software ...". They argued that those claims made clear that the auto-play robot software was available and that the blackjack software was only in development.

JPG asserted that people who responded to the ad and signed up with them would not purchase any software from them; instead they would become an agent for JPG and receive a free copy of JPG's development software package. They said their agents would then market the development software package, which included tutorials, full home installation and several software programs, such as the auto-play poker robot software. They asserted that people who signed up to be agents did not pay anything until everything had been installed and they were happy with it; agents then paid a deposit of £2,000, which was refunded on the completion of their first e-mail or postal campaign or on receipt of their first order. They sent a copy of the information pack, which included the agent's agreement form; they also sent the agent's confirmation letter, which agents received after signing up. JPG argued that those documents clearly stated that the blackjack read and voice software was in development. They said there were two different blackjack software programs: the read and voice program, which was in development, and a second program, which was fully developed and available in the development package. They said the part of the follow-up material the complainant had objected to, which was headed "STOP PRESS - VERY LATEST SOFTWARE INFORMATION ...", was intended to refer to the blackjack software that was available and formed part of the development package; it was not intended to refer to the blackjack read and voice software that was mentioned in the ad.

JPG argued that they intended the blackjack software, when fully developed, to win every hand and therefore to "never lose". They said the claim "Go from £100 to £500 In Minutes With No Risk!" also represented what they were trying to achieve in the development of the blackjack software. They said the claim "Or Earn £100s Each Night While you Sleep!" referred to the auto-play poker robots; they sent online newspaper articles about poker robots which, they argued, substantiated the claim.

JPG argued that the information pack, agent's application form and confirmation letter made clear the cost of taking up the business opportunity. They said each agent would receive £1,000 commission for every development software package they sold and pointed out that that was stated on the agency application form, which each applicant had to sign to take up the offer. They asserted that they had no evidence of an agent receiving £1000 commission because they had only two agents but neither had sold any software packages; therefore neither had received any commission.

Assessment

1. Upheld

The ASA considered that respondents would understand from the ad and follow-up material (the information pack) that the £2,000 was required to take up a business opportunity to become an agent for JPG, rather than to buy a specific software package. We noted JPG's argument that the magazine ad, the information pack and the agent's confirmation letter made clear that the blackjack read and voice software was in development. We considered, however, that, although the magazine ad and some parts of the follow-up material stated that there was blackjack software still in development, they did not make clear that there were two different blackjack programs or specify which of the two programs they were referring to. We considered, therefore, that consumers were likely to consider that the claim "NEW BLACKJACK SOFTWARE HAS JUST BEEN ADDED TO OUR NEW DEVELOPMENT PACKAGE ... NO DELAY - READY FOR YOU TO USE IMMEDIATELY ..." in the information pack implied there had been progress with the blackjack read and voice software that featured in the demo video mentioned in the ad and it was now a fully developed program that would be included in the development software package, which agents would be selling on and which they would receive a copy of. That claim appeared on a page of the information pack that was headed "STOP PRESS - VERY LATEST SOFTWARE INFORMATION ..."; we considered that that heading implied the information that followed superseded the other information in the pack. Because the full blackjack read and voice software was not available in the software development package, we considered that the follow-up material was misleading.

On this point, the follow-up material breached CAP Code clauses 7.1 (Truthfulness) and 16.2 (Availability of products).

2. Upheld

We noted JPG's assertion that they intended the software they were developing to never lose. We considered, however, that we would need to see independent documentary evidence that the software would never lose. Because we had not seen evidence to show that, we concluded that the claim was misleading.

On this point, the ad breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness).

3. Upheld

We noted JPG's assertion that they intended the blackjack software in development to enable customers to "Go from £100 to £500 In Minutes With No Risk!". We also noted JPG believed the online newspaper articles they sent substantiated the claim "Or Earn £100s Each Night While you Sleep!". We considered, however, that the articles merely referred to journalists' individual experiences of the general merits of using different suppliers' poker robots and were therefore not sufficient to substantiate the claim. We considered that we would need to see independent documentary evidence that the specific software JPG supplied could substantiate the earnings claims. Because we had not seen independent documentary evidence to support either of the claims, we concluded that they were misleading.

On this point, the ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 52.5 (Employment and business opportunities).

4. Not upheld

We noted the magazine ad did not state the specific cost of taking up the business opportunity; however, we also noted the information pack stated several times the £2,000 cost of taking up the opportunity. We noted the Code stated that the extent of financial investment could be included in follow-up material but that the initial marketing material should normally state if an investment was required. We considered that the claim "Deposit required for 1st set of leads which will be refunded in full immediately you have sent them all out", in the magazine ad, made clear that an investment would be required to take up the business opportunity and that the follow-up material made clear the specific cost of that investment.

On this point, we investigated the ad under CAP Code clauses 7.1 (Truthfulness) and 52.5 (Employment and business opportunities) but did not find it in breach.

5. Upheld

We noted the payment of £1,000 for each package an agent sold was stated on the application form, which each applicant had to sign to take up the opportunity. We considered, however, that because we had not seen specific documentary evidence to show that agents had made sales and had been paid at least £1,000 for each sale they made, the claim was misleading.

On this point, the ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 52.5 (Employment and business opportunities).

Action

We told JPG to make clear that the blackjack read and voice software was not yet available and not to imply a piece of software was available if it was only in development in future advertising. We also told them to remove the claims "SOFTWARE YOU WILL NEVER LOSE WITH!", "Go from £100 to £500 In Minutes With No Risk!", "Or Earn £100s Each Night While you Sleep!" and "At least £1000 each sale!" from their advertising and reminded them that they should hold documentary evidence to substantiate any future earnings or efficacy claims.

Adjudication of the ASA Council (Non-broadcast)