Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
Ads for easybeezy.com, a paid-for competition website:
a. A pop-up survey was headed "Visitor Survey: Amazon" and further text stated "You've been selected to take part in an anonymous survey for visitors in the Derby, Derby area. Tell us what you think of Amazon in this 30 second questionnaire, and to say ‘thank you’, we'll offer you a few exclusive giveaways. Available Today Only: Thursday, October 31, 2013". Small print at the bottom of the ad stated "We are not affiliated nor partner, with Amazon. Amazon has not authored, participated in, or in any way reviewed this advertisement or authorized it". After answering four questions, a page was displayed on which text stated "We have the following special offers for your participation. You may choose (2) offers from the list below for participating in our survey!" The products listed included a "Fuji Camera- FINEPIX AX600 Your cost: £1". A link was displayed with the text "Select Reward".
b. Clicking the link in ad (a) opened a web page on www.easybeezy.com which was headed "Get your FUJIFILM camera + 3 days access to easyBeezy.com for just £1". Smaller text underneath a picture of the camera stated "When your trial period of 3 days expires, it will automatically continue into a recurring subscription where you can win prizes worth thousands of dollars for just £74.00 per month. You can cancel your trial period or subscription at any time".
Questions and answers were displayed underneath, including "Why do you need my credit card information? When you sign up, you are offered a welcome bonus to become a member of easyBeezy.com for just 1EUR/1USD/1GBP/1AUD/1CAD/1NZD/9SEK/9NOK + 3 day trial for the website. We will deduct the 1EUR/1USD/1GBP/1AUD/1CAD/1NZD/9SEK/9NOK from your credit card as part of the welcome bonus. If you carry on after 3 days, we charge the agreed amount from your card to let you continue playing." And "How can I receive my welcome bonus? In order to receive your welcome bonus, you will have to: 1. After the sign up, login to Easybeezy.com with the password that we have sent you by email, go to ‘My account’ and add your postal address. We will then send you a postal letter with a PIN code. Once this letter arrives, please enter the PIN code on easyBeezy.com to verify your address. This helps us prevent fraud. 2. Play at least 10 complete games within the trial period. It does not matter whether it is 10 times the same game or different games as long as you have played 10 times. 3. Not cancel your trial period during the first 24 hours of the trial period. We will then send you your welcome bonus to the address you have confirmed with us."
Issue
The ASA received two complaints:
1. One complainant, who saw ad (a) as a pop-up when they were using the Amazon website, challenged whether the ad misleadingly implied the survey was run by, or on behalf of, Amazon.
2. Both complainants challenged whether ads (a) and (b) made sufficiently clear that by submitting their card details they were signing up to an ongoing subscription and would be charged unless they cancelled within the three-day trial period.
3. One complainant challenged whether the claims in ad (a) and (b) that you could obtain the camera for £1 were misleading, because they were told that they were ineligible to receive it because they cancelled their subscription during the trial period.
Response
1. Massillon Victory Ltd t/a easybeezy.com (Massillon Victory) confirmed they were not affiliated or partnered with Amazon. They said ad (a) had been placed on a consumer research website by an affiliate company, alongside many other daily ads. They said it stated clearly at the bottom of the ad that Amazon was not connected in any way with the ad. They said that pop-ups were created and posted by affiliate companies, and the fact that the pop-up was seen while browsing Amazon did not mean that Amazon had posted it.
2. Massillon Victory said that ad (a) included a list of promotional offers and that clicking on the camera offer linked to ad (b). They said that both ad (b) and the subsequent payment page summarised their terms and conditions, including the cost of the monthly subscription, and that customers had to tick to say they accepted the T&Cs. They said it was the user's responsibility to read and accept the T&Cs.
They said that since being notified of the complaint they had added two additional methods by which customers could cancel their subscription. They had added a 'Contact' tab to the web page where users could find the number of customer services in their country and had also added a cancellation button to the account section.
3. Massillon Victory said that in ad (b) a section headed "How to receive my welcome bonus?" made clear that you would lose your right to receive the welcome bonus if you cancelled your subscription before verifying your address. They said their T&Cs also stated that promotional offers with a welcome bonus were reserved for new paying members of easybeezy.com and that if a subscription was cancelled during the trial period no welcome bonus would be sent. They said they had now refunded the complainant's £1 payment.
They said that since being notified of the complaint they had amended their T&Cs so that users could now enter the PIN code sent to them to verify their address at any point, including after they had cancelled their subscription.
Assessment
1. Upheld
The ASA noted the ad stated "We are not affiliated nor partner, with Amazon. Amazon has not authored, participated in, or in any way reviewed this advertisement or authorized it". We contacted Amazon who said the ad was not run by, or on behalf of, them. We therefore considered that Amazon were not responsible for the ad.
We noted that Massillon Victory was the company whose website and offers were being advertised and that it was their website that consumers were directed to, following the completion of the survey. Although we acknowledged that they maintained the ad had been produced by an affiliate, we nonetheless considered that, as the beneficiaries of the marketing material, they were responsible for the ad and for responding to the ASA investigation.
The ad had small print on each page which stated the advertiser was not connected with Amazon. However, we understood that the complainant had seen the ad as a pop-up when browsing the Amazon website and that they had therefore believed it was an Amazon survey. We considered that consumers would believe pop-ups relating to visitor surveys to be directly connected with the website on which they were browsing, unless it was made clear this was not the case. We considered that the header "Visitor Survey: Amazon" also implied the survey was run by, or on behalf of, Amazon. Because it did not make it sufficiently clear that the survey was not run by, or on behalf of, Amazon we concluded ad (a) was misleading.
On this point ad (a) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
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) and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification).
2. Upheld
The first page of ad (a) stated "Tell us what you think of Amazon in this 30 second questionnaire, and to say ‘thank you’, we'll offer you a few exclusive giveaways". We considered it was significant material information that to obtain any of the offers given on the final page of the survey users had to submit their card details and sign up to an ongoing subscription, and would be charged unless they cancelled within the three-day trial period. We therefore considered this should have been made clear on the first page of ad (a) to enable consumers to make an informed decision about whether or not to complete the survey. We also considered this should have been repeated on the final page of ad (a) where the offers were listed. Because ad (a) did not include this qualification we concluded the ad was misleading.
We noted that ad (b) included text underneath a picture of the camera which stated "When your trial period of 3 days expires, it will automatically continue into a recurring subscription where you can win prizes worth thousands of dollars for just £74.00 per month. You can cancel your trial period or subscription at any time". However, this was in smaller text that the large header "Get your FUJIFILM camera + 3 days access to easyBeezy.com for just £1". We considered that the qualification should have immediately followed the header to make clear that consumers had to sign up to an ongoing subscription and would be charged unless they cancelled within the three-day trial period. Because ad (b) did not make this qualification sufficiently clear we concluded the ad was misleading.
On this point ads (a) and (b) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification),
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices) 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:
and
8.17.1
8.17.1
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
(Significant conditions for promotions).
3. Upheld
Both ads (a) and (b) stated that you could obtain the camera for £1. However, after cancelling their subscription during the trial period the complainant had been told they were ineligible to receive the camera because they had not maintained an active subscription for at least one month, which we noted contradicted the list of requirements given in the ad. We noted that one month's subscription cost £74. Both ads (a) and (b) presented the camera as available for £1 and that the only requirement was to verify your address and not to cancel your trial period within 24 hours. We noted that the address verification process involved Massillon Victory sending a letter to the user, and we therefore considered it was unlikely to be possible to verify your address within the three-day trial period. However, we also understood that Massillon Victory would not send a camera, or other welcome bonus, to users who cancelled within the trial period in any case. We welcomed Massillon Victory's changes to their T&Cs which meant users could verify their address after cancelling their subscription. However, because at the time the complainant saw the ad it was not possible to obtain the camera without a minimum payment of £74, plus £1 for the trial subscription, we concluded the claims in ads (a) and (b) that you could obtain the camera for £1 were misleading.
On this point ads (a) and (b) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
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),
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
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices).
Action
Ads (a) and (b) must not appear again in their current form. We told Massillon Victory Ltd to ensure that ads did not appear to be linked to other companies, when that was not the case. We also told them to make clear that by submitting their card details customers were signing up to an ongoing subscription and would be charged unless they cancelled within the three-day trial period. We told them not to state that a camera, or other welcome bonus, could be obtained for £1 unless that was genuinely the case and no other payments were required.
CAP Code (Edition 12)
3.1 3.10 3.17 3.3 3.7 3.9 8.17 8.17.1
