Background
Summary of Council decision:
Ad description
A mailing for Malcolm Hardy, a betting tipster, stated "You Can Win Over £5000 In Less Than 5 Weeks Guaranteed!! ... A Genuine Betting Breakthrough The Only Way That You Can Beat The Bookmaker and Make You Rich! ... Over 80% WINNERS MANY AT REALLY GOOD ODDS TOO And because the method evolved purely from intelligent-based fundamental reasoning, future success is literally guaranteed!... In 2011 My clients ... made in excess of £50,000 ... LATEST £29,000 PROFIT in the Last 20 Weeks ...".
A number of testimonials appeared in the mailing.
Issue
A recipient challenged whether the following claims were misleading and could be substantiated:
1. "You Can Win Over £5000 In Less Than 5 Weeks Guaranteed!!";
2. "Over 80% WINNERS";
3. "in 2011 My clients...made in excess of £50,000"; and
4. " £29,000 PROFIT in the Last 20 Weeks".
5. The complainant also challenged whether the testimonials in the mailing were genuine.
Response
Malcolm Hardy did not respond to our enquiries.
Assessment
Upheld
1.–5. The ASA was concerned by Malcolm Hardy's lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded him of his responsibility to respond promptly to our enquiries and told him to do so in future.
We noted we had not seen evidence to support the winnings claims in the mailing or to show that the testimonials were genuine. We therefore considered that the claims "Over 80% WINNERS", "You Can Win Over £5000 In Less Than 5 Weeks Guaranteed!!", "in 2011 My clients ... made in excess of £50,000", and "£29,000 PROFIT in the Last 20 Weeks" and the genuineness of the testimonials had not been substantiated and were therefore misleading.
The claims breached CAP Code (Edition 12) rules 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay), 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 3.45 3.45 Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it. and 3.47 3.47 Claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer. (Endorsements and testimonials).
Action
The claims must not appear again in their current form. We told Malcolm Hardy not to make claims for which he did not hold robust substantiation and to ensure that testimonials were genuine. We referred the matter to CAP's Compliance team.
