Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A paid-for Instagram post and the website www.ubersonic.co.uk promoted an electric toothbrush.
a. The Instagram post, dated 14 August 2016, included an image of the product and text that stated, "BEST DENTAL DEAL! Get Uber sonic + Teeth whitening For £1". Further text under the image stated, "New Uber Sonic toothbrush & Whitening kit every year £1 Refill service with Free delivery". The ad included a link to the Uber sonic website.
b. The home page of the website when accessed via a mobile on 14 August 2016, included text at the top of the page that stated, "SIGNUP OFFER AWARD-WINNING UBER SONIC ELECTRIC TOOTHBRUSH Gel teeth whitening kit and brush head to get you started - All for just £1 - NO ADDITIONAL CHARGES, NO FINE PRINT" above a YouTube video of a celebrity using the product, and a link inviting consumers to “TRY NOW”. Further down the page text stated "YES, PLEASE, SEND ME ONE UBER SONIC TOOTHBRUSH & A FREE GEL TEETH WHITENING KIT FOR £1 At the same time I become a member of the Uber Sonic Club, I will receive 2 replacement toothbrush heads 6x/year for £18 per package. Shipping is free. I may unsubscribe at any time after 6 deliveries without any further commitment".
Issue
The complainant, who understood that customers purchasing the toothbrush would need to pay a minimum of £109, challenged whether:
1. ad (a); and
2. ad (b)
misleadingly implied that the toothbrush and whitening kit could be purchased for £1.
Response
Uber Sonic Club Ltd said they had made changes to their site. They believed, however, that it was clear on the landing page on their website, the FAQs and in the terms, that the minimum subscription was six payments of £18 each. They also emphasised that if a consumer clicked on the ‘TRY NOW’ link, a pop-up box appeared with a statement at both the top and bottom of the box that made clear that consumers placing an order for the product were committing to pay an additional £18, six times a year. Therefore, they did not believe it was possible for a consumer to place an order without understanding what they were committing to.
Assessment
1. Upheld
The ASA noted that the ad included references to the ‘Uber Sonic’ toothbrush and a whitening kit, alongside the claim “For £1”. While we noted that text under the image stated “New Uber Sonic toothbrush & Whitening kit every year £1”, which suggested that there might be an ongoing financial commitment, we considered that that text was ambiguous at best, and that consumers were likely to believe that the toothbrush and whitening kit could be purchased for only £1.
We understood that to obtain the toothbrush for £1, consumers were required to commit to an ongoing subscription service, whereby they paid £1 a year to receive a toothbrush and gel whitening kit, and that they also had to pay an additional £18 six times a year for replacement toothbrush heads. While customers could cancel their subscription after a minimum of six deliveries of toothbrush heads, we understood that the minimum financial commitment was £109.
Because we considered the ad implied that the product could be purchased for a one-off payment of £1, when that was not the case, we concluded that it was misleading.
Ad (a) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification), 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. and 3.21 3.21 If the price of one product depends on another, marketing communications must make clear the extent of the commitment the consumer must make to obtain the advertised price. (Prices).
2. Upheld
We noted that the initial screen that consumers were presented with when arriving on the site was taken up by text describing the “SIGNUP OFFER” which stated that consumers could purchase the Uber Sonic toothbrush, gel teeth whitening kit and a brush head “All for just £1” and that there were “NO ADDITIONAL CHARGES”. We considered that consumers were likely to understand those claims to mean that they could purchase the item for a one-off payment of £1 and that no further costs would apply.
As stated in point 1 above, we understood that by placing an order for the product consumers were also automatically signed up to a subscription service, whereby they had to pay £18 a month every two months for replacements heads, for a minimum of a year. While we noted that those consumers who attempted to purchase the toothbrush and clicked on the “TRY NOW’ link were presented with a pop-up which included text explaining the full commitment that consumers were making by purchasing the product, we considered that this information constituted material information, which consumers needed to be aware of prior to commencing the ordering process.
We noted that the video beneath the ‘SIGNUP OFFER’ text included a female celebrity discussing the merits of the product and included references to membership of the Uber Sonic Club. In addition, towards the end of the video, as the woman referred to the replacement toothbrush heads included in the package, on-screen text stated “Replacement toothbrush heads 6x/year…£18/package”. We were concerned, however, that a number of consumers might not open the embedded video on the site, and therefore would not be aware of the content. Notwithstanding that concern, we also noted that, contrary to the initial £1 fee, the costs for replacement heads were not stated in the voice-over. Therefore, overall, we considered that the video did not make sufficiently clear that consumers were signing up for an ongoing subscription, or that they were required to purchase a minimum of six replacement head packs at £18 each.
Further, while we noted that additional text further down the web page made clear that, by ordering the toothbrush, consumers were joining a subscription service and were committed to purchase a minimum of six toothbrush-head packages for £18 each, we understood that consumers could click on the “TRY NOW” link and commence the order process, without navigating down the page to that additional information. Therefore, we considered that the text was not sufficiently prominent to counter the initial impression that the product could be purchased for a one-off payment of £1.
While we welcomed Uber Sonic’s willingness to make changes to their website, because we considered that the site did not make adequately clear the nature of the service or the costs involved, and instead implied that the toothbrush could be purchased for a one-off payment of £1, we concluded that it was misleading.
Ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification), 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. and 3.21 3.21 If the price of one product depends on another, marketing communications must make clear the extent of the commitment the consumer must make to obtain the advertised price. (Prices).
Action
The ads must not appear in their current form again. We told Uber Sonic Club Ltd to ensure that they made immediately clear the nature of their subscription service and the full costs involved for consumers signing up for the service, and did not imply that the product could be purchased for a one-off payment of £1.
