Ad description
Two direct mailings, each comprising several parts:
a. The first mailing included a letter stating "You will shortly receive the notice regarding a free LED mega package allocated to you - possibly an amazing 60 inches ... Your LED gift is ready and waiting for you and could well be as large as 60 inches".
Another sheet, which featured an image of a television, stated "Who knows, we may soon surprise you with the following announcement: '[NAME] THIS 60 INCH SAMSUNG LED TV IS YOURS, FREE*!’ ...".
b. The second mailing was sent in an envelope featuring an image of a television and text stating "A MEGA PACKAGE CONTAINING AN LED APPLIANCE!* ... Find out if you have been awarded the 60" package inside here!".
Issue
The complainant, who believed that the ads implied the free gift was a 60-inch LED television, but understood that it was actually an LED light, challenged whether the ads were misleading.
Response
Plantiflor Ltd (t/a Bakker) stated that the gift to be supplied in the offer was a mystery gift and that they therefore only gave customers small details about it, such as that it was an LED item that came in various sizes. They also said that the term 'LED' was a generic one referring to devices containing light emitting diodes, and that the gift was an LED product and therefore described as such. They believed that their customers were very familiar with this type of promotion. Plantiflor stated that it was highly improbably that a consumer could mistake the TV prize as the free LED gift. With such a desirable prize being offered to a large number of customers, they and the ASA would have received many more complaints if it had misled consumers. They said that it was not within their interest to disappoint their customers and offered to refund the complainant.
Plantiflor stated that from the opening paragraph of ad (a) it was clear that this item was the gift (as everyone would receive it). They said that they then introduced the prize, noting that ad (a) made clear that some customers would also receive an LED TV. Plantiflor also noted that another enclosure in this ad again referred to an LED 'gift' with no mention of a TV. They stated that the ad discussed two quite separate things - the up to 60" mega package gift and then the LED TV with a 60" screen as a prize - and that there was no implication that the free gift was a 60" TV.
Plantiflor stated that the envelope of ad (b) referred to four LED TVs separately from a mention of a shipping order for the mega gift package, and that as it stated clearly that the TVs were prizes there was no reference to them being gifts. They noted that the envelope also asked customers to check whether their code gave them the right to a package containing a 60" appliance, which was not described as a TV, and that the second reference to the TV specifically described it as a prize. With regard to the contents of ad (b), they stated that the core letter referred to an LED appliance directly under a headline referring to the mega gift packaged and that there was no mention of a TV in this section. They then referred to a headline under this statement that referred to some customers being guaranteed to win an LED TV, with a footnote instructing readers to review the terms and conditions of the promotion and a further paragraph detailing their plans to give away four TVs. Plantiflor specifically noted that the words "also" and "win" appeared in this reference and stated that this meant there was no implication of the free gift being an LED TV. They also stated that the next part of the letter, which was about the gift, did not mention a TV and that the message of being offered an LED gift was very different to that of being given the chance to win an LED TV. They stated that they had been mindful of the need to keep the prizes and gifts separate in the parts of the letter, and noted that the reverse of the letter referred to the possible sizes of the LED gift, but did not mention TVs.
Plantiflor stated that a further enclosure from ad (b) referred only to further details about the size of the gift being available elsewhere in the mailing. They noted that another enclosure solely referenced the TV and that the copy used conditional language, such as "may", which was very different from the promise of a free gift referenced elsewhere in relation to the LED gift. They also stated that the phrase "Free for one of our valued VIP customers" would indicate to consumers that this was a separate promotion because it was limited to one person, whereas the gifts were available to all who placed an order. They stated that the final enclosure listed only the TV prizes and did not mention the gifts or the mega package.
Assessment
Upheld
The ASA understood that all customers placing an order were eligible for a free mystery LED gift, and that these would be up to 60" in size. We noted that 'LED' was indeed a generic term and considered that, as we understood the mystery gift was an LED light, it was not misleading to refer to the gift as an LED appliance as long as the focus on this detail did not in itself mislead consumers about the nature of the gift. We understood that these customers would also be placed into a prize draw to win one of four LED TVs, the largest of which was 60". We noted that references to the TV were often differentiated from mentions of the LED gift in some way, usually by explicit references to it as a “prize” or to the LED gift as a ”mega package gift”.
However, we noted that the CAP Code required the distinction between gifts and prizes to be made clear and that in instances where both were offered, particular care should be taken to avoid confusing the two, such as by implying that consumers have qualified for a prize as well as a gift. We noted that although they were sometimes delineated, references to the gift and to the prize were mixed throughout several of the enclosures and considered that this, as well as other elements of both ads, significantly blurred the distinction between what consumers would reasonably expect to receive as a gift or as a prize. We specifically considered that the references to the gift as a ”mega package” only, were unlikely to make clear to consumers that it was the gift rather than the prize that was being described.
We noted that the core letter of ad (a) described the gift aspect of the offer and then stated "A number of customers will even get a gorgeous LED TV with an amazing 60 inch screen", which we considered did not make clear that this was to be awarded as a prize rather than a gift. Although we understood Plantiflor's assertion that the statement "Then you will immediately know whether you have the right to a package containing a 60 inch (approx.) appliance" on the envelope of ad (b) was intended to refer to the gift, we noted that it did not clarify whether it referred to the gift or the prize. We considered that this would be understood by customers as a reference to the subject of the rest of the envelope, which was the LED TV. We also noted that one enclosure in ad (b) stated "Who knows, we may soon surprise you with the following announcement: ’[NAME] THIS 60 INCH SAMSUNG LED TV IS YOURS, FREE*!’", with the second part considerably more prominent than the first. We noted that this statement did not refer to the TV as a prize and considered that, in the context of ad (b) as a whole, the general impression given was that the consumer was being awarded a TV. We noted that throughout the ads, both the gift and the prize were referred to with the terms ”LED” and ”60 inch”, and that the word ”appliance” also featured, as well as references to the customer having been “awarded” or ”qualified for” an item. Although we acknowledged that the use of these labels was factually accurate, we considered that their specific use in this context highlighted the similar elements of the gift and the prize in a way that served to imply the mystery gift was the same as the prize. In light of elements such as these, we considered that despite clarifying this difference on some occasions, many elements of the mailing obscured the distinction between the LED appliance 'gift' and the LED TV 'prize' and made the mechanic of the promotion ambiguous, which we considered would lead some consumers to believe that they were being awarded an LED TV as a gift. We therefore concluded that the ads breached the Code.
The ads 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) and
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 18.19 (Prize promotions).
Action
The ads must not appear again in their current form. We told Plantiflor Ltd to ensure that future promotional material made clear to consumers the difference between gifts and prizes that were being offered.
