Ad description
A TV and press ad, seen on 9 June 2011, promoted a Claims Management Company (CMC) offering to claim mis-sold Payment Protection Insurance (PPI) refunds on behalf of consumers.
a. A TV ad featured on-screen text, read by a voice-over. It stated "Payment Protection Insurance has been mis-sold to many who didn't need, want or ask for it. A few years ago I was mis-sold PPI. I contacted Gladstone Brookes and they managed to recover over £7000 for me within just four weeks. If you've had a loan in the last six years where you didn't understand your repayments or the insurance sold to you, call Gladstone Brookes now on 0800 XXX XX XX before your claim time runs out.". Flashing on-screen text stated "Call now before time runs out".
b. A press ad stated "PRODUCT RECLAIM... Payment Protection Insurance premiums are now being returned Plus Interest where the product has been mis-sold and we make a successful claim against your loan provider... YOU COULD BE OWED UP TO £7000 PLUS INTEREST ... WE ARE SORRY FOR THE INCONVENIENCE CAUSED AND URGE YOU TO CALL US NOW TO ARRANGE YOUR POLICY REFUND(S) BEFORE YOUR DEADLINE PASSES. Please call our Product Reclaims Unit Now".
Issue
1. RBS and two other complainants challenged whether the statement "Call now before time runs out" in ad (a) was misleading and could be substantiated, because they believed that there was no deadline for submitting a PPI refund claim.
RBS challenged:
2. whether the statement "BEFORE YOUR DEADLINE PASSES" in ad (b) was misleading and could be substantiated, because they believed that there was no deadline for submitting a PPI refund claim; and
3. whether the claims "Product Reclaim" and "sorry for the inconvenience caused" in ad (b) were misleading, because they implied that it was the advertisers who were offering PPI redress to customers who wished to claim a refund and that claiming via the advertisers was an 'official route' offered by the supplier of their PPI policy.
Response
1. & 2. Gladstone Brookes Ltd (Gladstone) stated that the deadline referred to the fact that banks destroyed policy documents and information relating to policy sales after a period of time (often six years) and Gladstone had had a number of clients who had been unable to present a complaint because they did not have the relevant policy information and the banks had been unable to recover that information due to the passage of time. They said they had closed a number of complaints from clients on that basis and that once the documentation had been destroyed, clients without policy information could not make a complaint. They provided examples of correspondence from banks showing that the documentation had been destroyed.
3. They did not agree that the ad implied that they were offering PPI redress or that they were an 'official route' offered by the supplier. They said the ad stated "... we make a successful claim against your loan provider" which they believed contradicted the implication that that was an official route organised by the Policy Providers themselves.
1., 2. & 3. Clearcast provided the substantiation they had received from Gladstone when they had approved the ad, which explained that the 1980 Limitation Act stated "an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued" and said Gladstone had maintained that many institutions only held the evidential file for six years before destroying the file. They said they had approved the claim on the basis of that evidence.
Assessment
1. & 2. Upheld
The ASA understood that, to obtain redress for mis-sold PPI policies, consumers needed to contact their policy provider, or the independent financial advisor (IFA) who had arranged the policy and if they were not satisfied by their response, they could refer the matter to the Financial Ombudsman Service (FOS) for adjudication. We understood that the FOS had time limits in place for consumers to refer complaints: complaints to the FOS should be referred within six months from the policy provider or IFA sending the consumer a final response to their complaint, and within six years from the event the consumer was complaining about or, if later, three years from when the consumer knew, or could reasonably have known, that they had cause to complain. We noted that there were no other specific time-bar rules for referring PPI complaints and also noted that the FOS might take account of any exceptional circumstances which had caused a complaint to be referred out of time and waive the time limits in those cases.
Although we noted that Gladstone maintained that a number of their clients had been unable to present a complaint about their policy because the relevant policy information had been destroyed by their bank, we understood that that did not necessarily prevent a consumer from bringing a complaint to the FOS, as there might be other means or evidence available to reconstruct the nature of the policy and look into the matter.
On that basis, although we understood that there were notional time limits in place and that it might therefore be advisable to avoid delaying a complaint referral, we also considered that the claims "Call now before time runs out" and "BEFORE YOUR DEADLINE PASSES" suggested there was a strict and definitive deadline date by which complaints must be made and considered that the claims overstated the urgency for referring a complaint through Gladstone. We therefore concluded that ads (a) and (b) were misleading.
On point 1, ad (a) breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
3.2
3.2
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Misleading advertising),
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is 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
3.31
3.31
Advertisements must not falsely claim that the advertiser is about to stop trading or move premises. They must not falsely state that a product or service, or the terms on which it is offered, will be available only for a very limited time to deprive consumers of the time or opportunity to make an informed choice.
(Availability).
On point 2, ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
Advertisements 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
3.31
3.31
Advertisements must not falsely claim that the advertiser is about to stop trading or move premises. They must not falsely state that a product or service, or the terms on which it is offered, will be available only for a very limited time to deprive consumers of the time or opportunity to make an informed choice.
(Availability).
3. Upheld
We noted that the ad stated "... we make a successful claim against your loan provider", which suggested that the claim needed to be made against another business, but considered that that information was contradicted by the claims "Product Reclaim", "sorry for the inconvenience caused" and "CALL US NOW TO ARRANGE YOUR POLICY REFUND", because some consumers would infer from those claims that the advertisers were responsible for mis-selling the PPI policies and could be directly contacted to obtain redress. We therefore concluded that ad (b) was ambiguous and likely to mislead.
On that point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Advertisements 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
3.31
3.31
Advertisements must not falsely claim that the advertiser is about to stop trading or move premises. They must not falsely state that a product or service, or the terms on which it is offered, will be available only for a very limited time to deprive consumers of the time or opportunity to make an informed choice.
(Availability).
Action
Ads (a) and (b) must not appear again in their current form.
