Ad description
An e-mail ad, with the subject line "Smoke smarter without sacrificing taste" included text which stated "Beat the Winter Blues and Save with e-Cigs!" and "E-CIGARETTES TRIAL OFFER". Text stating "START YOUR TRIAL" hyperlinked to a web page on the website www.clearsmoke.eu where e-mail recipients were required to enter their details to obtain a "TRIAL KIT" of ClearSmoke e-cigarettes.
Issue
Two complainants challenged whether the e-mail ad was misleading, because it did not make clear the terms of the trial.
Response
Net Ventures Business Intelligence Ltd (NBVI), a direct marketing agency, responded on behalf of Desert Point Ltd, which traded as ClearSmoke. NVBI said they felt the premise of the offer was made sufficiently clear. At no point was the trial offer described as a "free sample" or "free kit". The trial was marketed as a 'try before you buy' offer, which enabled consumers to try the kit for 15 days before deciding whether to keep the product. NVBI said the e-mail was not the place for details about the offer. The details of the 15-day trial were, however, provided at various stages throughout the offer sign-up process, starting with the first web page on www.clearsmoke.eu. They said that all web pages included a link to the offer terms and conditions, which were also outlined on the web page where consumers must enter their card details to finalise their order, on the confirmation e-mail sent to consumers after the order was placed and on the dispatch note included with the kit.
Assessment
Upheld
The ASA understood that under the trial offer consumers received a trial supply of ClearSmoke e-cigarettes, and were charged £7.95 for postage and packing. If they did not cancel the trial within 15 days a further £59.95 would be deducted from their credit card. We considered that the requirement to cancel the trial within 15 days or be charged £59.95 was a significant condition to the offer which was likely to influence a consumer's decision about whether or not to sign up to it by clicking through from the e-mail to the advertiser's website. We considered that information should therefore have been included, clearly and prominently, in the e-mail ad. We concluded the omission of that information from the e-mail ad was misleading to consumers and the ad was therefore in breach of the Code.
The ad 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),
3.9
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).
Action
The ad must not appear again in its current form. We told Desert Point Ltd t/a ClearSmoke to ensure all their marketing communications included clear and prominent information that if customers did not cancel the trial within 15 days they would be charged £59.95.
