Background
Summary of Council Decision:
Four issues were investigated of which three were Upheld and one was Not upheld.
Ad description
Three e-mails, for surveys and promotions, sent between 10 March and 6 April 2011:
a. The Subject field of the e-mail stated "Marks and Spencers [sic] vouchers up for grabs", and the ‘From’ field stated "Marks and Spencers survey", followed by an e-mail address. The body of the e-mail used Marks & Spencer branding, and stated "M&S This isn't just an ordinary e-mail; this is a chance to win £1,000 in vouchers to spend at M&S. Marks & Spencers [sic] offers fine quality food, clothing and home ware [sic]. If you would like £1000 in vouchers to spend in store, we are giving you the opportunity. For your chance to win this amazing prize all you have to do is to complete a short online lifestyle survey. In return you will be entered into our prize draw and be rewarded with a £5 online gift card to say thank you." Small print stated "*Please be aware that this offer and £5 reward voucher are in no way associated with Marks and Spencers [sic] or its partners".
b. The ‘Subject field of the e-mail stated "Sainsbury [sic] vouchers in your pocket book", and the ‘From’ field stated "Sainsburys [sic] Voucher", followed by an e-mail address. The body of the e-mail used Sainsbury's branding and stated "Win £1,000 to spend in Sainsbury's For your chance, just complete a simple lifestyle survey. Would you like to try something new at Sainsbury's? Here is your chance with £1,000 worth of gift vouchers up for grabs. For your chance to win this amazing prize all you have to do is to complete a short online lifestyle survey. In return you will be entered into our prize draw and be rewarded with a £5 online voucher to say thanks. Spend your gift vouchers on over 30,000 quality products; mouth-watering foods, great wines, wide screen TVs, beauty treats and the latest fashions. Sainsbury's vouchers can be spent in over 700 stores nationwide, Sainsbury's petrol stations and coffee shops". Small print stated "Please be aware that this offer and £5 reward voucher are in no way associated with Sainsbury's or its partners".
c. The Subject field of the e-mail stated "Argos vouchers up for grabs", and the ‘From’ field stated "Argos Shopper", followed by an e-mail address. The body of the e-mail used Argos branding and stated "Win a £500 gift card to spend at Argos Would you like the chance to select a gift from the 'laminated book of dreams'? If the answer is 'Yes' here is your chance to win a £500 gift card to spend at Argos. For your chance to win this amazing prize all you have to do is to complete a short online lifestyle survey. In return you will be entered into our prize draw and be rewarded with a £5 online voucher to say thank you". Small print stated "*Please be aware that this offer and £5 reward voucher are in no way associated with Argos or its partners".
Issue
The ASA received three complaints. Two complainants challenged whether:
1. the prizes offered in ads (a) and (b) were genuine and as described;
2. ads (a) and (b) misleadingly implied that they were from Marks & Spencer (M&S) and Sainsbury's; and
3. ads (a) and (b) breached the Code, because they did not make clear the identity of the marketer.
4. All three complainants challenged whether ads (a), (b) and (c) misleadingly implied that the £5 reward vouchers could be used at the stores referred to in the ads.
Response
1. surveys.co.uk said that the prizes offered in the ads were genuine and as described. They said that their Prize Draw Rules were described on the survey page, setting out the prizes and, where applicable, the alternative cash value. They said that, where consumers indicated they wanted the vouchers rather than a cash alternative, they purchased the vouchers from the relevant company. They said that the terms and conditions of the prize draws advertised in the e-mails, which were available on their website, stated that the winning entries would not be selected until 31 December 2011 and consequently they could not yet provide documentary evidence in relation to the winners.
As an alternative, they provided documentary evidence in relation to three of their most recent winners, who had won prizes in February 2011, to demonstrate that their prize draws were genuine. They sent copies of three ads which they said advertised the prize draws those winners had entered into: "Win 4 tickets to Alton Towers"; "Sky 3D Subscription & a 3D TV"; and "Win a £500 gift card to spend at mothercare". They said that all three winners had chosen the cash alternatives, and they provided copies of documents which referred to the amount of cash the winners had won, and a copy of a bank statement which showed cheque payments for those amounts. They highlighted that one document showed that the winner was offered the prize of a family theme park annual pass or a cash alternative. They also provided an e-mail, dated 12 October 2011, from the winner of the Sky 3D subscription, in which they confirmed that they had been offered the prize but had chosen the cash alternative.
surveys.co.uk said they did not have documentary evidence which demonstrated that the other winners had been offered the prizes but had chosen the cash alternatives, because winners were initially contacted by telephone and asked whether they would like the prize or the cash alternative. They provided a copy of the transcript their customer services representatives used when calling winners to inform them of their win. They said that, as a result of the ASA's investigation, they had now changed their process in relation to informing prize winners so that they would be sent an initial letter which explicitly stated which prize they had won.
2. surveys.co.uk said that both ads included the text "Please be aware that this offer and £5 reward voucher are in no way associated with [M&S / Sainsbury's] and its partners". surveys.co.uk said that text was in a prominent position immediately below the statement "Start the survey now" and the web-link 'button' which consumers had to press in order to enter the survey. They said that any consumer undertaking the survey would therefore have their attention drawn to the statement that the offer and reward voucher were not associated with the company referred to in the e-mail.
3. surveys.co.uk said that the e-mails had been sent by an affiliate, who had removed several elements from the e-mail created for the ads, including their website address and part of the disclaimer at the foot of the e-mail. They said this was against their contractual agreement with the affiliate, and they had now terminated their contract. They added that in both ads (a) and (b), the 'From' fields included return e-mail addresses which included the names of the sub-affiliates in question. They said the e-mails were sent to consumers on those sub-affiliates' databases, and those consumers would have had to opt in to receive communications from those companies. They said it was reasonable to assume that the recipients would therefore be aware of those sub-affiliates. They added that the sub-affiliate's brand names and addresses were included in the footer of the e-mail.
4. surveys.co.uk said that all their ads stated "Please be aware that this offer and £5 reward voucher are in no way associated with [Brand] or its partners". They said the main prizes of M&S, Sainsbury's and Argos vouchers were not related to the £5 reward vouchers which were available for download by consumers at the end of the survey. They referred again to the positioning of the statement, which they considered would draw consumers' attention when they clicked on the 'button' to enter the survey.
Assessment
1. Not Upheld
The ASA noted the prize draws advertised in the e-mails would not happen until December 2011, as noted in the terms and conditions on surveys.co.uk’s website, and that they therefore could not yet substantiate that the prizes had been awarded. We therefore considered that in the circumstances it was appropriate to see whether the advertiser could demonstrate that previous prize draws had been genuine and as described. We noted the documentary evidence provided by surveys.co.uk demonstrated that three winners had been awarded cash prizes in February 2011. We acknowledged that one winner had chosen the cash alternative to the Sky 3D subscription prize, and that another was offered a Theme Park Annual Pass, a prize of greater value than the original prize of “Win 4 tickets to Alton Towers”, but also chose the cash alternative, as did the third winner. We therefore considered that surveys.co.uk had demonstrated that their previous prizes were genuine and as described. We have also noted that the prize draws occurring on 31 December 2011 led to the offer and acceptance of the cash equivalents to the prizes advertised, thus confirming that the prizes advertised were genuine and as described.
On this point we considered the ad under CAP rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales promotions), and did not find it in breach.
2. Upheld
We noted that one of the complainants had responded to ad (b) in the belief that it had been sent from Sainsbury's.
We noted the 'Subject' and 'From' fields of ad (a) stated "Marks and Spencers vouchers up for grabs" and "Marks and Spencers survey", and the 'Subject' and 'From' fields of ad (b) stated "Sainsbury vouchers in your pocket book" and "Sainsburys [sic] Voucher". We considered those headings implied that the e-mails were sent from M&S and Sainsbury's. Furthermore, we considered the overall impression created by the body text of the e-mails in their descriptions of M&S and Sainsbury's products and services, and their use of the terms "we" and "our" was that the e-mails had been sent from or on behalf of M&S and Sainsbury's.
We noted the e-mails included small print which stated "Please be aware that this offer and £5 reward voucher are in no way associated with [M&S / Sainsbury's] or its partners." However, we considered that, because nowhere in the e-mails did it make clear which company had actually sent the e-mails, or on whose behalf they had been sent, the overall impression of the e-mails was that they had been sent by, or on behalf of, M&S and Sainsbury's. We therefore considered the small print contradicted, rather than clarified, the rest of the ad. We concluded the ads were misleading.
On this point, ads (a) and (b) breached CAP Code rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
3.5
3.5
Marketing communications must not materially mislead by omitting the identity of the marketer.
Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections.
Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice.
(Misleading advertising) and
8.1
8.1
Promoters are responsible for all aspects and all stages of their promotions.
(Sales promotions).
3. Upheld
We noted that neither ad (a) nor ad (b) included any information to the effect that surveys.co.uk was the marketer. We acknowledged that surveys.co.uk had stated that the original copy for the ads included the surveys.co.uk website address but that it had been removed by the affiliate responsible for sending the e-mail, and as a result they had now terminated their relationship with that affiliate. We noted, however, that the CAP Code stated that promoters were responsible for all aspects and all stages of their promotions. We considered that, because surveys.co.uk benefited from the e-mails regardless of who sent them, they were the main promoter and were therefore also responsible for the content of the e-mails.
We noted that ads (a) and (b) included the names of the relevant sub-affiliates in the return e-mail addresses in the 'From' fields, but considered that consumers would not necessarily be aware of the names of companies that held their information. Furthermore, we considered that in order to make clear that the survey and prize promotion were conducted by surveys.co.uk, it should have been made clear in either the 'Subject' or 'From' fields, as well as in the main body of the e-mails, that it had been sent on behalf of surveys.co.uk. Because the e-mails did not make clear the identity of the marketer, we concluded the ads breached the Code.
On this point, ads (a) and (b) breached CAP Code rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
3.5
3.5
Marketing communications must not materially mislead by omitting the identity of the marketer.
Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections.
Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice.
(Misleading advertising),
8.1
8.1
Promoters are responsible for all aspects and all stages of their promotions.
(Sales promotions) and
10.6
10.6
Marketing communications sent by electronic mail (but not those sent by Bluetooth technology) must contain the marketer's full name (or, in the case of SMS messages, a recognisable abbreviation) and a valid address; for example, an e-mail address or a SMS short code to which recipients can send opt-out requests.
(Database practice).
4. Upheld
We noted ad (a) stated "... Get £1000 M&S Voucher plus £5 gift card" and "... you will be entered into our prize draw and be rewarded with a £5 online gift card ...", and ad (c) stated "... Get a £500 Argos gift card plus £5 voucher" and "... you will be entered into our prize draw and be rewarded with a £5 online voucher ...". We noted ad (b) also stated "... you will be entered into our prize draw and be rewarded with a £5 online voucher ...". We considered that, in context with the overall impression of the e-mails, the claims implied that survey respondents would receive a £5 gift card or voucher for the company named in the e-mail, to spend online through their website.
We noted each e-mail included small print which stated "Please be aware that this offer and £5 reward voucher are in no way associated with [company] or its partners". However, we considered that because the overall impression of the ads was that the £5 gift cards/vouchers were for the companies named in the ads, the small print contradicted rather than clarified the claims. We concluded the ads were misleading.
On this point, ads (a), (b) and (c) breached CAP Code rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
3.5
3.5
Marketing communications must not materially mislead by omitting the identity of the marketer.
Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections.
Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice.
(Misleading advertising),
8.1
8.1
Promoters are responsible for all aspects and all stages of their promotions.
(Sales promotions).
Action
Ads (a), (b) and (c) must not appear again in their current form. We told surveys.co.uk that their ads should make clear that the surveys and prize promotions were run by surveys.co.uk, and that surveys.co.uk should be named in either the ‘Subject’ or ‘From’ fields as well as in the main body of the e-mails.
