ASA Adjudication on Esher Mail Order Ltd
Esher Mail Order Ltd t/a
BVG-Airflo Group Plc
Units 5 & 6 Industrial Estate
12 August 2009
Number of complaints:
A mail order catalogue, for Clifford James, stated "YOUR FREE GIFT ELECTRIC TOOTHBRUSH WHEN YOU SPEND £35. WORTH £19.99".
A customer, who placed two separate orders for goods both over £35, challenged the availability of the electric toothbrush, because he was sent alternative gifts, which he believed were of a much lower value.
CAP Code (Edition 11)
Esher Mail Order (Esher) said the response from their mailing was high and, as a result, stocks of the free electric toothbrush were exhausted. They said they estimated anticipated demand based on the response rate to previous offers and, because eligibility for the free electric toothbrush was restricted by a requirement to spend £35 or over, they expected the response rate to be lower than usual. They said they nonetheless believed, having 10,000 units in stock, that they had 2,500 more toothbrushes than they would have normally expected to provide. They said they were unsure why the response to this particular offer was so high.
Esher said, when stocks ran out, they advised customers at the point of ordering that the free gift would have to be substituted for an alternative. They said the alternative gifts sent to the complainant, a DVD storage box and a night light, had been on offer in their catalogue for £14.99 and £9.99 respectively, although the night light had previously been sold at the higher price of £14.99. They acknowledged that they made little reference to the conditions attached to their free gift ordering in the catalogue; they made no promise to replace a gift with an item of identical value but endeavoured to replace it with something of similar value, which they believed they had done in this case. Esher said they had since amended their terms and conditions and their order forms to ensure customers would be aware that all gifts were subject to availability and had to be requested at the time of ordering and that they had the right to replace a free gift with an alternative.
The ASA welcomed Eshers assurance that they had amended their order forms to ensure customers would be aware that gifts were subject to availability, but reminded them that it did not relieve them of their obligation to take all reasonable steps to avoid disappointing customers. We noted Esher received a higher than expected response rate to the offer and considered that they had taken reasonable steps, based on previous similar offers, to anticipate likely demand for the electric toothbrush. However, we considered that marketers, who were unable to supply demand for a promotional offer because of an unexpectedly high response, should provide a refund or a substitute gift of equivalent quality and price. Because customers were offered an alternative gift of a DVD storage box or a night light, neither of which were of equivalent quality and price to the electric toothbrush, we considered Esher had failed to take adequate steps to avoid disappointing consumers. We concluded that the promotion was in breach of the Code.
The catalogue breached CAP Code clauses 27.4 (Sales promotions rules) and 30.4 (Availability), but did not breach 30.1.
The catalogue must not appear again in its current form. We told Esher that, if they needed to provide alternative gifts in future, to ensure they were of equivalent quality and price to the advertised gift.
Adjudication of the ASA Council (Non-broadcast)