ASA Adjudication on Play Ltd
Play Ltd t/a
40 The Esplanade
24 February 2010
Number of complaints:
An e-mail, for Play.com, had the subject line "Play.com: Guaranteed Delivery - Call of Duty: Modern Warfare 2". Text in the body of the e-mail stated "GUARANTEED DELIVERY ON DAY OF RELEASE ... ORDER CALL OF DUTY MODERN WARFARE 2 BY MIDNIGHT SUNDAY 8TH NOVEMBER AND WE GUARANTEE* UK DELIVERY ON DAY OF RELEASE TUESDAY 10TH NOVEMBER ...". The asterisk linked to small print that stated "*PLAY will despatch your order in time to be delivered on release day. Delivery is subject to our delivery partners achieving standard delivery guarantees. PLAY take no responsibility for late delivery due to card failures, incorrect address details or failure on the part of the delivery partner".
Two customers, who pre-ordered the game, challenged whether the claim of guaranteed delivery on the day of release was misleading, because they received the game after the release date.
CAP Code (Edition 11)
Play.com said they normally told customers delivery should be expected within three to five days, but they always tried to ensure goods were received earlier, which had been their intention with the advertised offer. They said the offer was made around the time of a postal dispute, but, once they received confirmation that the strikes had been cancelled, they set midnight on 8 November as a sensible cut-off date, expecting delivery to occur within 48 hours. They said they were confident, based on their delivery partners normal delivery schedules, that customers would receive the game by the release date of 10 November. They explained that in some circumstances, for example remote locations, they used a bespoke home delivery company to ensure that the game would be received as advertised. Play.com said all orders were dispatched in time to make this possible but unfortunately, in a limited number of cases, their delivery partners normal time frames were not met, but nonetheless over 99% of customers, who placed their orders before the deadline, received the game by the advertised release date.
Play.com said, although they dispatched all goods in time to meet the advertised delivery date, they were nonetheless reliant on their delivery partners meeting their normal expected delivery time frames. They believed the footnote, linked by an asterisk from the main claim in the e-mail, clarified to customers that, although Play.com expected delivery to be made in time, there was nonetheless an element outside of their control and they could not be responsible for any failure on the part of the delivery partner.
The ASA noted that Play.com despatched orders in time for them to arrive on the games release date, but that delivery was nonetheless reliant on their delivery partners performing to their normal delivery time frame. Although the e-mail made that condition clear, we considered this did not absolve Play.com of their responsibility to ensure their delivery partners adhered to the delivery guarantee and notified Play.com of problems arising so they could address any general issues or amend their advertising to remove guaranteed delivery claims should that be necessary.
We noted in this case that the games were despatched in time to be delivered by 10 November and understood that, although a few games had not been received by the advertised date, there appeared to be no widespread problem with delivery and over 99% of orders were received by customers by that date. We further noted Play.com used a home delivery service to minimise the risk of late delivery in remote locations.
We concluded that, because the vast majority of orders were received by the advertised date and there was no widespread problem, the e-mail was unlikely to mislead.
We investigated the e-mail under CAP Code clauses 7.1 (Truthfulness) and 17.1 (Guarantees) but did not find it in breach.
No further action necessary.
Adjudication of the ASA Council (Non-broadcast)