Ad description
A text message from a claims management company, on 11 April 2011, stated "Free Msg: Our records indicate you may be entitled to £3750 for the accident you had. To apply free reply CLAIM to this message. To opt out text STOP".
Issue
The complainant, who had not had an accident, challenged whether the ad:
1. was misleading and could be substantiated; and
2. breached the Code because it was unsolicited.
Response
Vintels said they could not find the complainant's details or telephone number in their database because they routinely deleted numbers to prevent messages being re-sent to the same people.
Assessment
1. & 2. Upheld
The ASA noted Vintels' response but considered that they should have been able to demonstrate that they had explicit permission to contact the complainant and also be able to substantiate their claim that he had had an accident. Because we had not seen either that permission or substantiation, we concluded that the ad was misleading and in breach of the Code.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading Advertising), 3.7 (Substantiation), 10.3, 10.4.2 10.4.2 marketing communications are not sent unsolicited to consumers if explicit consent is required (see rule 10.13) and 10.13.3 10.13.3 sending marketing communications by electronic mail (excluding by Bluetooth technology) but marketers may send unsolicited marketing about their similar products to those whose data they have obtained during, or in negotiations for, a sale. Data marketers must, however, tell those consumers they may opt out of receiving future marketing communications both when they collect the data and at every subsequent occasion they send out marketing communications. Marketers must give consumers a simple means to do so (Database practice).
Action
The ad must not appear again in its current form. We told Vintels to ensure that they held evidence that demonstrated that text messages were sent in accordance with the Code and not to make claims for which they did not hold substantiation.
