Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A direct mailing, for a prize promotion, stated on the envelope "CONFIDENTIAL FOR ATTENTION OF ADDRESSEE ONLY". Further down the envelope it stated "YOUR TIME SENSITIVE DOCUMENTS ARE ENCLOSED", which was also printed on the reverse of the envelope.
The mailing stated "IMPORTANT ... Please ensure that you act within 14 days to be eligible to claim maximum awards. Failure to do so could mean forfeiting the maximum £51,000.00! ... As an important new customer, your name has been selected to be eligible for a life-changing financial opportunity from the Damart Finance Department ... you are being offered today with a chance to become £51, 000 richer*". The asterisk linked to small print at the bottom of the page stating "*Free Prize Draw, no purchase necessary. See Prize Draw rules for full details".
Issue
A recipient challenged whether:
1. the mailing envelope was obviously identifiable as marketing material, because it appeared to be an official document; and
2. the claims "TIME SENSITIVE DOCUMENTS" and "act within 14 days to be eligible" were misleading, because it was unclear when the 14-day deadline commenced.
Response
1. Damart believed it was clear from the envelope that the mailing was not an official document, because their address was printed on the reverse of the envelope. They said the mailing was only sent to existing customers and therefore including the brand name and address on the flap, of what was essentially a plain envelope, would be recognised by recipients as a promotional mailing. In addition, the mailing was bulky, containing a 132-page catalogue and other marketing materials and recognisable as a mailing rather than official documentation.
Damart said they used "CONFIDENTIAL FOR ATTENTION OF ADDRESSEE ONLY", because the mailing contained the account number of the customer, which was linked to their credit account. However, they decided not to use 'private and confidential' in order to avoid exaggerating the importance of the mailing.
They said the claim "YOUR TIME SENSITIVE DOCUMENTS ARE ENCLOSED" accurately reflected a substantial aspect of the prize draw mailing, which was indeed time sensitive. Damart believed that the mailing was obviously identifiable as a marketing communication, and they had received no other complaints of a similar nature.
2. Damart said the 14-day deadline related to the 'Early Reply Bonus' they offered, and was clearly explained in the prize draw rules, which stated "... if the winner of the main prize has quoted and returned a privilege code within 14 working days of receipt of a qualifying promotion, they will be awarded an Early Reply Bonus of £10,000". Those who did not respond within 14 days were not eligible for the bonus.
Damart said they had systems in place to monitor when the mailing was delivered and to check whether a customer responded within 14 days of delivery.
Assessment
1. Upheld
The ASA noted Damart's name and address on the reverse of the envelope, but also noted that the text was much smaller than the other claims on the envelope. We considered that, without further clarification of the contents, the name and address was not sufficient to alert recipients to the fact that it was a marketing communication.
The envelope did not state that it contained marketing material and we considered the claims, "CONFIDENTIAL FOR ATTENTION OF ADDRESSEE ONLY" and "YOUR TIME SENSITIVE DOCUMENTS ARE ENCLOSED", that did appear on the envelope did not make it obviously identifiable as such. The claims also gave the impression that the content was official and urgent documentation. Although we understood that there was a response deadline, it was nonetheless unclear from the claim "YOUR TIME SENSITIVE DOCUMENTS ARE ENCLOSED" that the urgency related to entry into a prize draw rather than an official deadline. Although the envelope was bulky, we nonetheless considered that the size did not remove the misleading impression that it contained official documentation.
We considered that the mailing was not obviously identifiable as a marketing communication and we therefore concluded that it breached the Code.
On this point, the mailing breached CAP Code (Edition 12) rule 2.1 2.1 Marketing communications must be obviously identifiable as such. (Recognition of marketing communications).
2. Upheld
We understood that Damart was able to track when the mailing was delivered and from that information calculate whether a customer responded within the 14-day deadline. However, the mailing did not explain that the response deadline would be calculated from the date the material was received by consumers. Without that knowledge, recipients would be unaware of when the 14-day countdown started.
We also noted it was not possible to work out how much time was left to respond from the envelope, which did not include a postage stamp date, or from the enclosures which were also dateless. We considered that, because it was unclear how much time was left to respond or whether the opportunity to take part in the early reply bonus had been missed, consumers would be under pressure to respond immediately without knowing whether they were still eligible to participate.
We therefore considered that, because the promotion material was undated, if the deadline for responding to the early reply bonus was calculated from the date the material was received, this should have been stated in the material itself. Because it was not we concluded that the mailing was in breach of the Code.
On this point, the mailing breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising) 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
and 8.17.4d (Significant conditions for promotions).
Action
The mailing must not appear again in its present form. We told Damart to ensure that future mailings were clearly identifiable as marketing material and to ensure that response deadlines were clearly explained.
