Ad description
Claims on www.clearsmoke.co.uk stated "Smoke Clean WITH THE UK'S #1 E-CIGARETTE". Text below stated "Act Now To Claim Your Trial". On the right of the page was an electronic form for customers to fill in their details with a button below which stated "RUSH MY ORDER". Once that step had been completed the user was presented with another page that was headed "Are You Ready to be Tobacco-Free?". Below it showed the product next to a crossed-out price of £59.95 and a total cost for the order of £7.95, once postage and packaging was added. On the right of the page was a box for users to enter their credit card details to pay for the postage and packaging. Small print at the bottom of the page stated "Our guarantee: By placing your order for the Trial Offer today you will be shipped a ClearSmoke Electronic Cigarette Kit, and you credit card will be billed only GBP 7.95 for P&P. We give you a 15 day trial period from the date you accept this exclusive offer to evaluate our products. If you feel ClearSmoke is not for you, cancel within 15 days from today to avoid the one time purchase fee of £59.95. There are no other charges. Remember you can cancel this exclusive offer at any time by simply calling our Customer Services on 0800 XXX XXX".
Issue
The complainant, who had ordered the trial product, challenged whether the promotion was misleading because it did not make clear that customers needed to actively cancel the offer to avoid being billed the full product cost.
Response
ClearSmoke Ltd said the trial basis of the offer was extremely clear. At no point was the Trial Offer described as a "free sample" or "free kit"; it was marketed as a try-before-you-buy offer, enabling customers to try the kit for 15 days before deciding whether or not to keep it. All details of the 15-day trial (including trial period, cancellation and billing information) were clearly displayed in their Terms and Condition. Links were available at the bottom of every single page of the website, as well as in full in the small print on the page where customers entered their card details. Both the confirmation e-mail sent after every order and the dispatch note included with the kit, also included this information. ClearSmoke believed they gave customers every opportunity to cancel their trial and avoid being billed by providing both an e-mail address and a customer support line for them to contact.
Assessment
Upheld
The ASA understood that, while only postage and packaging was charged at the point the order was made, it was necessary for consumers actively to cancel the trial within 15 days of ordering to ensure that they were not subsequently billed for the product. Although we noted that information was given in small print on the final page, we considered that requirement to actively cancel the trial was a significant condition likely to influence a consumer's decision about whether or not to take up the offer. We therefore considered that information should have been made prominently clear on the first page of the promotion itself. Because it was not, we concluded that the promotion was misleading.
The promotion breached CAP Code (Edition 12) 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.
(Misleading advertising)
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)
8.17
8.17
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:
and
8.17
8.17
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:
(Significant conditions for promotions).
Action
We told ClearSmoke Ltd to ensure that they made clear all significant conditions for their promotions and to contact CAP’s Copy Advice team for guidance.
