ASA Adjudication on Kingstown Associates Ltd

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A direct mailing, containing a catalogue advertising health and beauty products, was sent in a yellow envelope marked with a black border. Large text on the front of the envelope stated "FIXED PAYMENT NOTICE", while smaller text immediately below stated "OPEN IMMEDIATELY ... IT'S GOOD NEWS!" The address panel also revealed part of the letter which stated "Open Immediately [recipient name] you may already be eligible to claim a fixed payment of £65,000". The reverse of the envelope stated "DO NOT IGNORE - Reply requested before 12.12.08" Writing in a black box stated "If you are eligible to claim a fixed payment of £65,000, you must register before 12th December 2008". A yellow box, also on the reverse of the envelope, was headed "£65,000 PRIZE DRAW PROMOTION RULES". The terms specified the eligibility criterion for entry into the £65,000 prize draw. The terms stated "2. To register your Unique Fixed Payment Entry Ticket Number ... return the completed Fixed Payment Notice Entry and Order Form in the enclosed reply envelope … If you prefer to order by telephone, fax or online your Unique ... Number will be automatically registered at the time. 3. Closing Date - the latest deadline for entries into this particular promotion is 12th December 2008. … 5. ... there is one prize of £65,000. This will only be awarded if an entrant registers their Unique Fixed Payment Entry Ticket Number and it matches the 8-character combination already pre-selected ... this promotion will run until 16th October 2009 ..." The terms also specified that the winner would be notified by 30th November 2009. The mailing contained a 'Fixed Payment Entry Ticket', which incorporated a ticket number. Text stated "Dear [recipient name], The latest Healthy Living Direct prize draw has now taken place and a winning entry number has been chosen; I am now obliged to notify you that if you are the holder of the winning 'Fixed Payment Entry Ticket' you will receive a brand new car and a cash sum to the value of £65,000 provided you reply before 12th December 2008. Check your 'Fixed Payment Entry Ticket' now, it could be worth £65,000! Compare the number printed on your personal 'Fixed Payment Entry Ticket' against the list of numbers opposite, if your number is an exact match … you will receive the stated car and cash provided you return the winning 'Fixed Payment Entry Ticket' before the closing date ...". Text, in a handwritten-style font, stated "P.S. Remember you must return your 'Fixed Payment Entry Ticket' before the 12th December 2008 to claim any prize you may already have won!" The mailing also contained an 'Entry & Order Form', which asked the recipient to affix their 'Fixed Payment Entry Ticket' to a specified area and to complete details of their order for item(s) from the enclosed catalogue.

Issue

Three complainants challenged whether the mailing:

1.  made clear that it contained marketing material, because it had the appearance of a parking fine notification;

2.  was likely to cause undue fear or distress.

3.  Two complainants challenged whether the mailing misleadingly implied that the recipient had won £65,000.

CAP Code (Edition 11)

Response

Kingstown Associates did not comment on the points of complaint specifically.  They explained that the company had recently undergone a change of ownership and the mailing was prepared by the previous owners.  Having reviewed the contents of the mailing in light of the complaints, they confirmed that it would not be re-used in future.

Assessment

1. & 2.  Upheld

The ASA noted the mailing arrived in an envelope, which was printed in yellow and black and resembled the style used for a parking fine notification, with the text "FIXED PAYMENT NOTICE" in bold lettering on the front and the text "DO NOT IGNORE - Reply requested before 12.12.08" on the back.  

We also noted that, underneath the bold lettering on the front, smaller text stated "OPEN IMMEDIATELY ... IT'S GOOD NEWS!" and the address panel revealed text on the letter which read "Open Immediately [recipient name] you may already be eligible to claim a fixed payment of £65,000".  We noted boxed text on the back of the envelope also referred to claiming a fixed payment of £65,000 and further boxed text was headed "£65,000 PRIZE DRAW PROMOTION RULES".

Although we considered that the envelope and contents clarified that it was promotional material once opened and read, we were concerned that the style of its presentation, with the prominent text "FIXED PAYMENT NOTICE", was such that it could be initially mistaken for a fine.  We considered that other text in relation to claiming a fixed payment of £65,000 would confuse rather than clarify to readers the nature of the mailing and concluded that it was not sufficiently clear that the envelope contained marketing material.

Because it was not sufficiently clear that the mailing contained marketing material and as it had the initial appearance of a penalty order, we concluded that it could cause undue alarm and, therefore, distress to some recipients.

On points 1 and 2, the mailing breached CAP Code clauses 2.2 (Social responsibility), 7.1 (Truthfulness), 9.1 (Fear and distress) and 22.1 (Recognising marketing communications and identifying marketers).

3.  Upheld

We understood that the complainants had inferred from the wording "if your number is an exact match for any one of these numbers you will receive the stated car and cash provided you return the winning 'Fixed Payment Entry Ticket'..." that they were already in receipt of the winning entry ticket, because their ticket entry number matched that listed against a prize of a vehicle and a substantial sum of money.  

We also noted, however, the ticket number was described as an 'entry' ticket and text stated "... YOUR CHANCE TO ENTER THE PRIZE DRAW".  

Although we considered that some recipients would understand that, when read as a whole, the mailing represented only entry into a prize draw, rather than notification of a considerable win, we were concerned that a number of recipients might infer they were already in receipt of a winning ticket entry and assume that all they had to do to retrieve their winnings was return their 'Fixed Payment Entry Ticket'.  Because of this, we concluded that the mailing could mislead.

On this point, the mailing breached CAP Code clauses 7.1 (Truthfulness) and 35.1(Other rules for prize promotions).

Action

The mailing must not appear again in its current form.

Adjudication of the ASA Council (Non-broadcast)