ASA Adjudication on The Gym Ltd
The Gym Ltd
Prince Regent Road
9 January 2013
Number of complaints:
Three ads featured a time-limited offer to rejoin the Vauxhall branch of a gym:
a. An SMS message, received in April 2012 stated "LAST CHANCE to Rejoin The Gym Vauxhall for FREE. Enter your old 05XXXXXX At [website address] offer ends 30th April. To opt out reply with STOP".
b. An e-mail, sent on 29 August 2012, stated, in the subject line, "The Gym Vauxhall - Last Chance to Rejoin The Gym Vauxhall For Free". Text in the e-mail stated "Dear XXXXX. Re-Join Today For FREE & Only £19.99 Per Month. Re-Join The Gym Vauxhall by midnight on the 31st August 2012 to receive this fantastic offer. Places are limited, so make sure you take full advantage of this great offer. Please click here and enter your original pin number of 05XXXXXX. Alternatively visit our website [website address] and hit the rejoin button on the home page. Don't delay, Rejoin today and save yourself ££'s. Offer expires midnight on the 31st August 2012".
c. An e-mail, sent on 26 September 2012, stated, in the subject line, "The Gym Vauxhall - We've Missed You - Rejoin For Free". Text in the e-mail stated "Dear XXXXX. Re-Join Today For FREE & Only £19.99 Per Month. Re-Join The Gym Vauxhall by midnight on the 30th September 2012 and pay no joining fee! Plus we will also give you an opportunity to participate in our October Promotion at The Gym Vauxhall - FREE Osteopathic assessment using a postural analysis machine! ... Places are limited ... Please click here and enter your original pin number of 05XXXXXX. Alternatively visit our website [website address] and hit the rejoin button on the home page. Don't delay, re-join today and save yourself ££'s. Offer expires midnight on the 30th September 2012".
The complainant challenged whether the ads were misleading, because they falsely implied the offer was time-limited and would not be repeated.
CAP Code (Edition 12)
The Gym Ltd considered that the ads and the offers given were separate and distinct offers, which were truly limited in time. They stated that, although there was a common feature of the joining fee being waived, the offers were linked to a different basis of membership on each occasion or were sufficiently separate in terms of time. They added that each offer was only issued to a limited number of people who had previously been members of the particular gym concerned.
In relation to ad (a), they stated that that offer, made in April 2012, was an independent offer to join for free and was a last-chance offer which expired at that time. They said that offer was not continually open and was not available to that member between April and August 2012. They considered that ad (c), the September offer, should also be distinguished from the others, as it was made for a short period and included the opportunity for the osteopathic assessment. They pointed out that it was not a "last chance" offer.
They did not accept that it had been shown that any particular offer had been repeated. They accepted that the offers were time limited, which was a usual feature, but did not accept that it was the case that the same offer was subsequently available within a short period of time thereafter.
Upheld (in relation to ad (b) only)
The ASA understood that ads (a), (b) and (c) all offered an opportunity for selected former members of The Gym to rejoin the gym for the usual set monthly fee of £19.99 per month, without being subject to the £20 joining fee, for a limited period.
We noted that ad (a), the SMS sent in April, stated "LAST CHANCE to Rejoin The Gym Vauxhall for FREE ... offer ends 30th April". The complainant then received ad (b) at end of August, around four months later, which again offered him a chance to rejoin The Gym without being subject to the joining fee.
We considered that consumers would understand that the claim "LAST CHANCE to Rejoin The Gym" to mean that the offer in question was nearing its expiry date and the ad was highlighting that consumers might wish to take up the offer. We considered consumers would be unlikely to infer that the claim was an absolute claim which meant that there would never be any further opportunities to rejoin the gym on the same terms. Notwithstanding that, we did not consider that it would be appropriate for the advertisers to run the same offer to rejoin the gym, without being subject to the joining fee, shortly after the closing date. We considered that four months was a sufficient length of time between the offer set out in ad (a) and ad (b) to distinguish them as clearly separate offers and concluded that, because of the time period separating the offers, ad (a) was unlikely to mislead.
We noted that ad (c) was sent around one month after ad (b). We acknowledged that ad (c) promoted an additional feature to the offer of re-joining the gym without being subject to the joining fee, namely a "FREE Osteopathic assessment". However, we considered that consumers who had received ad (b) would understand that the opportunity to rejoin the gym without being subject to a joining fee expired on midnight on 31 August 2012 and considered that receiving another offer to re-join the gym without being subject to the joining fee, less than one month later, would be contrary to consumer expectation.
We therefore considered that ad (b) implied an undue sense of urgency that that was the last chance to re-join the gym without being subject to the joining fee and that some consumers might have felt pressured into taking up the offer quickly. We therefore concluded that ad (b) was misleading.
Ad (b) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.31 (Availability) and 8.2 (Sales promotions).
We investigated ads (a) and (c) under CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.31 (Availability) and 8.2 (Sales promotions), but did not find them in breach.
We told the advertisers to ensure that they did not place undue pressure on consumers into making a purchase or imply an offer was time limited, if it was to be made available again shortly thereafter.