Ad description
A sales promotion for a magazine subscription on http://marvel-factfiles.com/subscribe in November 2012 stated "SUBSCRIBE TODAY. DON'T MISS A SINGLE COPY + RECEIVE 4 FREE GIFTS. When you take out a subscription, every issue will be sent direct to you for no extra charge, and you will receive wonderful FREE GIFTS (while stocks last). 1. TIN PLATE COVER. A beautiful life-size replica of the cover of Fantastic Four #1, the historic issue that kicked off the Marvel Age. WORTH £10. 2 IRON MAN FIGURE. Stunning 150mm tall figure of one of Marvel's greatest heroes. WORTH £20. 3. SPIDER-MAN FIGURINE. A second incredible 135 mm tall Marvel figurine to add to your collection. WORTH £20. 4. T-SHIRT. A unique Marvel T-shirt, specially created for subscribers. WORTH £20". Immediately beneath, it invited consumers to enter their postcode and subscribe.
Issue
The complainant, who took out the subscription but did not receive the free gifts, challenged whether the promotion was misleading because they had been told it was a "test" subscription and the free gifts had never been available to be sent to subscribers.
Response
Eaglemoss Ltd t/a Marvel Fact Files explained that the publication of the magazine was suspended in November 2012 due to poor sales and all subscribers at that time received a refund. Following a review and changes to the publication, it was re-launched in March 2013.
Marvel Fact Files said the subscription offer in November was genuine and provided documentary evidence of the stock levels held in December 2012 for the Spiderman and Iron Man figurines. They believed the complainant had been told incorrectly that the offer they saw in November 2012 was a "test" one and there were no free gifts available. They said the customer service operatives should not have responded in the way they did, rather they should have passed the complainant's query onto the publisher. Following notification of the complaint, they asked their subscription bureau to review its policies to ensure similar errors did not happen in the future.
Marvel Fact Files explained that where possible, the free gifts were sent out with each subsequent delivery of the magazine; receipt of all four gifts was dependent on the subscription being maintained. The "welcome" letter sent to new subscribers stated they would receive two issues every two weeks and set out how the free gifts would be delivered: the tin plate was included in the first delivery, the Ironman figure in the second, the Spiderman figurine in the third and the T-shirt with the fourth. Subscribers were asked to allow up to 21 days for delivery of the first issue and they were advised the order in which their gifts were delivered might be slightly different to that advertised.
Assessment
Not upheld
The ASA understood from the complainant that he had been told that the November 2012 subscription was not genuine and that the free gifts had never been available. However, we had seen evidence which demonstrated that Marvel Fact Files had made a reasonable estimate of the likely response for the subscription offer and, in December 2012, held adequate stocks of what had been advertised as the second and third subscription gifts to meet that response. However, we understood that on this occasion those two gifts would actually be the first two received by the subscribers and that Eaglemoss would have ordered stock for the two remaining gifts if the publication not been suspended. While they had taken the decision to suspend publication of the magazine due to poor sales, we concluded nevertheless the subscription offer in November 2012 was genuine and had not been created to assess potential demand.
We recognised that affected subscribers would have been disappointed at not receiving their free gifts following the suspension of the magazine's publication. However, we understood Marvel Fact Files gave refunds to those customers. We noted the circumstances behind the decision to suspend the publication which we considered were unanticipated factors beyond their control. While we sympathised with the complainant, we concluded Marvel Fact Files could not have avoided causing disappointment to their customers and it had been necessary for the business reasons stated.
We investigated the promotion under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.28.2 3.28.2 if the marketer does not intend to fulfil orders, for example, because the purpose of the marketing communication is to assess potential demand, the marketing communication must make that clear (Availability), 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 8.9 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. (Sales Promotions - Availability) but did not find it in breach.
Action
No further action necessary.
