ASA Adjudication on Optimax Laser Eye Clinics

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An online prize draw, for Optimax laser eye surgery, was headed “Enter Our Free Prize Draw!”. The web page featured an entry form where winners could list their details. The terms and conditions for the prize draw were listed below. Text at point (1) stated “The winner is entitled to free laser eye treatment, costing up to £4500”. Another web page gave a list of the Optimax Prize Draw Winners and further terms and conditions were featured below. Point (1) stated "The winner is entitled to free laser eye treatment, costing up to £4500 at other clinics in the UK and up to £3090 at Optimax".

Issue

1. The complainant challenged whether the prize draw promotion was misleading because it implied winners would receive full treatment up to £4500 or £3090 whereas he was told he was entitled to treatment for one eye only, worth £895.

2. The ASA challenged the availability of prizes worth £3090 and £4500.

CAP Code (Edition 11)

Response

1. & 2. Optimax Laser Eye Clinics (Optimax) explained that the "free treatment" prize draw was an ongoing promotion. They said a draw was made in one or more clinic areas, when a particular clinic had appointment slots to fill. Optimax told the ASA that a draw usually took place once a month. Winners in the clinic area were drawn at random and the top value prize was awarded only to a small number of entrants. Optimax said the prize of a lesser value (treatment for one eye only worth £895, which the complainant had won) was offered to most entrants depending on a clinics need to fill its appointment slots. They explained that that prize had its own terms and conditions, which were different to the terms and conditions for the top value prize that were stated on their website, and provided us with a copy. Optimax did not tell us how many people had been awarded the prize worth £895.

Optimax said they had awarded approximately five completely free treatments above the value of £3090 in the last year, but did not submit documentary evidence of that. They said considerably more people were notified that they had won a free treatment but did not take up the offer; they explained that most people perceived the promotion as a marketing gimmick. Optimax added that, even where the top prize was awarded, suitability for treatment varied between patients, and therefore so would the cost of the treatment they would actually receive; some would be offered treatment worth £3090 but may only be suitable for a lower value treatment. They estimated that about 20% of patients fell into that category. Optimax conceded that the figures quoted in the draw should more closely have reflected the likely prize outcome.

Assessment

1. Upheld

The ASA noted individuals entered the prize draw by ticking the "free treatment prize draw" check box when they submitted their details to the Optimax website, where the terms and conditions were also described. We understood that entrants names were then picked at random and prizes were awarded according to the appointment slots available at different clinics.

We considered that entrants would understand from the terms and conditions on the website that they were entering a prize draw promotion to win laser eye surgery, for both eyes, to the value of £3090 with Optimax or £4500 at another clinic.

We understood from the complainant that he received an e-mail that stated in the subject line "Congratulations! ... You are a winner of the laser eye treatment competition you entered." Text in the body of the e-mail stated "Congratulations! You have won laser eye treatment worth up to £895 ... well done - you are the lucky winner of the Laser Eye Treatment competition". The complainant pointed out, however, that he had entered the competition to win laser eye surgery to the value of £3090 or £4500, as described on the website.

We were concerned that the mechanics of the promotion were not clear to entrants: it did not stipulate how winners were selected, how often a draw took place or how winners were notified. We also noted the promotion did not make clear the number of prizes available and, while it did quote the value of the top prizes (£3090 and £4500), those values were not typical of those generally awarded. In addition, the nature of the prizes to be awarded was unclear. We noted Optimax offered several different types of laser eye surgery and the terms and conditions stated that the prize was transferable to "other Optimax Laser treatments". However, the terms and conditions which accompanied the complainants notification of his prize stated that the prize was for a particular type of treatment and was "non-transferable".

We considered that winners were likely to be confused and disappointed to find that they had won treatment worth £895 for one eye only when they had entered a prize draw to win a higher value treatment for both eyes. We noted the website did not indicate that other prizes were available.

We noted the CAP Code stipulated that prize draws should ensure that prizes were awarded in accordance with the laws of chance and under the supervision of an independent observer. We noted we had not seen evidence to show that Optimax had adhered to that requirement. We considered that, because prizes were awarded according to the appointment slots available at different clinics and to those entrants in the clinic area, the prize draw was not conducted in accordance with the laws of chance. We considered this was unfair and that Optimax could therefore cause unnecessary disappointment to entrants.

We considered that the promotion should have made clear the value, nature and availability of prizes and the mechanics of the promotion. Because it had not, we concluded that the prize draw promotion was misleading.

On this point, the prize draw promotion breached CAP Code clauses 7.1 (Substantiation), 27.4 (Sales promotion rules), 34.1(a) and 34.1(e) (Significant conditions of promotions) and 35.7 and 35.9 (d) (Other rules for prize promotions).

2. Upheld

We noted Optimax estimated that approximately five people had won treatment above the value of £3090 in the last year but had not provided documentary evidence of that. We also noted we had not seen evidence to show that they had awarded prizes costing up to £4500 at other clinics.

We understood, however, that most entrants to the prize draw were awarded laser treatment for one eye worth £895, which was considerably less than the advertised treatment of up to £3090 at Optimax or £4500 at other clinics. We therefore concluded that the claim "free laser eye treatment, costing up to £4500 at other clinics in the UK and up to £3090 at Optimax" exaggerated the availability of prizes of that value to consumers.

On this point, the prize draw promotion breached 3.1 (Substantiation) and 15.4 (Exaggerated price claims).

Action

The prize draw promotion must not appear again in its current form. We told Optimax to contact the CAP Copy Advice team for guidance on the wording of future, similar promotions.

Adjudication of the ASA Council (Non-broadcast)