Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
An email for a competition, received on 11 September 2016, stated "Win £250 JUST EAT Vouchers. Hi XXXXX We are searching for a person living in your city who goes by the name XXXXX. This person has been particularly selected to get a chance to WIN a £250 JUST EAT gift voucher ... Confirm here now if this is you! CLICK AND WIN ...".
Issue
The complainant challenged whether:
1. the ad misleadingly implied that Just Eat was the advertiser; and
2. the offer was genuine.
Response
1. 12Products BV explained that the email had been sent from a third-party affiliate as part of a host mailing service and they had had no input into the content of the email or any control over it. They said that had they seen the email in advance of it being sent, they would not have approved it to promote the service. However, they did not believe the content of the email implied it was from Just Eat. They said the references to Just Eat were used to merely describe the competition prize. They pointed out that the promoter's name and address appeared in the email.
They believed the email needed to be judged on the basis of the sender ID as well as its content.
2. 12ProductsBV explained that the offer was a phone subscription service and that for a cost of £4.50 users would be able to participate in quiz competitions to win prizes. They believed that was clear from the email as it included text stating "Acceptance of the 12prizes offer subscription: join for £4.50 per week. If you subscribe, the costs are added to your phone bill or deducted from your prepaid card until you unsubscribe". They said the prize was subject to joining the subscription service.
Assessment
1. Upheld
The ASA noted that text at the top of the email stated "JustEat has a surprise for you" and considered that gave the impression that the email had been sent by Just Eat. We also considered that because the email contained branding which was the same as, or substantially similar to, Just Eat's branding, that impression was enhanced. Although the email contained the promoter's name and address at the foot of the email, we considered it was likely to be overlooked by consumers. We also noted that the email contained the 12Prizes logo. Small print underneath the logo stated "12prizes is supplying you this chance". However, we did not consider that was sufficiently prominent to counter the overall impression that the email had been sent by Just Eat. For those reasons we concluded that the email was misleading.
On that point, 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),
3.41
3.41
Marketing communications must not mislead the consumer about who manufactures the product.
and
3.43
3.43
Marketing communications must not take unfair advantage of the reputation of a competitor's trade mark, trade name or other distinguishing mark or of the designation of origin of a competing product.
(Imitation and denigration).
2. Upheld
We considered that consumers were likely to interpret the email to mean that the recipient had been specially selected to enter a prize draw to win a £250 Just Eat voucher and that they could click on the "CLICK AND WIN" link in the email to find out if they had won. However, we understood that was not the case and that consumers were required to sign up for a paid subscription before they could enter the competition. We had also not seen evidence to show that any prizes had been awarded to the names listed in the email. For those reasons, we concluded that the offer to win £250 Just Eat vouchers was not genuine.
On that point, the ad breached CAP Code (Edition 12) rule 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. (Promotional marketing).
Action
The ad must not appear again in its current form. We told 12Products BV to ensure their mailings did not create a misleading impression that they had been sent by a company or brand with whom they were not affiliated, and that any qualifications were sufficiently prominent, so as not to mislead consumers about their identity. Any prizes offered should be genuine, and it should also be clear to consumers how those prizes could be obtained; for example, if they had to enter into a paid subscription to take part in the competition.
