ASA Adjudication on Bauer Active Ltd

Ad

An e-mail, for Practical Fishkeeping magazine, had the subject line "Get an external filter worth £79.99 when you subscribe!". Text in the body of the e-mail stated "Subscribe today and get a Tetratec EX600 external filter (worth £79.99) for free! ... As a special treat, exclusive to PFK website members, we're offering one of our best ever subscription offers this month. If you subscribe now you'll get a FREE Tetratec external filter worth £79.99 with your annual subscription to the print magazine. However, we've got very limited quantities of these, so if you're interested don't wait a second longer and subscribe now!". Towards the end of the e-mail, it stated "Exclusive Offer. Subscribe today and get a Tetratec EX600 external filter (worth £79.99) for free! The Tetratec EX600 suits aquariums from 60-120 litres. This is a limited offer exclusively available to UK newsletter readers. We reserve the right to send you an alternative gift once we have exhausted our stocks".

Issue

A recipient said he responded the same day he received the e-mail but was told the filter was no longer available.  He said he was offered a water test kit as an alternative, which he understood was not of an equivalent value to the filter.  He believed the e-mail was misleading because Practical Fishkeeping did not have sufficient stock to satisfy demand.

CAP Code (Edition 11)

Response

Bauer Active (Bauer) explained that they only had a small number of filters, but nonetheless believed that, based on fulfilment of previous subscription offers, there would be enough to satisfy demand.  They said the demand, however, was much higher than they expected with orders totalling nearly three times the amount of stock available.  They said the subscription orders were placed within two hours of the e-mail being distributed and once they realised stock had run out, they removed the offer from their website.  Bauer said they initially allowed those subscribers who were unable to take advantage of the free filter to cancel their subscription but, in order to avoid disappointment, they then decided to buy more filters and wrote to all subscribers whose orders could not be fulfilled to offer them the gift.  They said those readers who had cancelled their subscription because the filter was not available were given the opportunity to re-instate their subscription.  They denied that they offered a water test kit as an alternative gift to the filter and said the water kit was an additional existing subscription offer on their website and in the magazine.

Bauer believed the e-mail made clear that the filter was a limited offer with limited quantities and said they offered the e-mail promotion in good faith. They believed they had taken reasonable steps to avoid disappointment by purchasing further filters at a much higher price and sending them to subscribers to ensure they received exactly what they expected.

Assessment

Upheld

The ASA noted Bauer had based expected demand for the filter on previous Practical Fishkeeping subscription gift offers.  However, we also noted previous offers were for items such as DVDs, books and test kits, which were of significantly less value that the Tetratec external filter on offer.  We acknowledged that the promotion had achieved a higher response rate than expected, but were concerned that Bauer had not based their estimate of likely response on promotional items of a similar value and had been unable to supply demand for the free gift. We noted the e-mail stated "we've got very limited quantities ..." and "This is a limited offer ..." but considered that this did not relieve Bauer of the obligation to take all reasonable steps to avoid disappointment to respondents.  Although we welcomed their subsequent actions to fulfil the offer, we noted unsuccessful respondents were initially told only that they could cancel their subscription and considered that, at the time the e-mail was sent, Bauer had not taken adequate steps to avoid disappointing consumers.

The e-mail breached CAP Code clauses 27.4 (Sales promotion rules), 30.1, 30.2 and 30.4 (Sales promotion rules - Availability) and 31.1 (Sales promotion rules - Administration).

Action

We told Bauer to take more care when planning similar offers in future and to ensure that they had enough stock to satisfy demand.

Adjudication of the ASA Council (Non-broadcast)