Ad description
An eight-page direct mailing from Plantifor Ltd, trading as Spalding Plant and Bulb Company (Spalding Plant and Bulb Company), gave details of a Philips TV prize promotion. The front of the envelope stated "(Name), a Philips television is ready for delivery. Return your delivery request as soon as possible". A box underneath that stated "Maximum value of guaranteed delivery £949". Smaller text at the bottom of the envelope stated "Delivery of this beautiful prize award guaranteed for one of our most valuable customers according to the enclosed terms and conditions". The back of the envelope featured a large image of a Philips TV. On top of this picture there was a box with the figure "£949" crossed out and text that stated "FREE* ATTENTION enclosed: Delivery Request. Warranty certificate for a Philips television". The asterix led to text at the bottom of the page that stated "This beautiful prize is offered according to the details provided on the form, 'Delivery confirmation of a Philips television'". A banner running along the top of the envelope stated "Loyal Customer eligible for a Philips Ambilight television".
A letter enclosed with the mailing stated "Dear (name), As Spalding's Promotions Manager, I'm determined to make sure that ALL your FREE Gifts and Awards reach your home at (address) swiftly. Please confirm that your name and address are correctly printed on the card below, and make a note of any changes. Then, should you be lucky and I need to immediately access your contact information I can: 1. PROMPTLY SEND YOUR WINNER NOTIFICATION LETTER to you. 2. CONFIRM THE £949 PHILIPS DELIVERY will be addressed to you - and you alone - at (address). 3. DELIVER YOUR GUARANTEED AWARD without delay. Within the next 5 days an official (name) Delivery Request is due to arrive at your home in a large white envelope. In addition to revealing exactly which exciting £949 Philips product it is, your delivery request will outline our delivery intentions and the very real possibility for you to become the rightful recipient. IMPORTANT: when your white envelope arrives, open it immediately and carefully follow the instructions to claim ALL of your benefits. Once that's done make sure you return your verified Contact Card, along with your Delivery Request documents, as instructed. It's important that nothing stands in the way of our next prize winner, least of all a misdirected or delayed delivery." Red text at the top of the letter stated "GUARANTEED DELIVERY PENDING TO WINNER OF AWARD WORTH £949".
A second letter enclosed with the mailing stated "Dear (name), Today I have excellent news for you! I could soon be saying to you: '(name), this is your big moment. We have officially awarded a FREE Philips Television to you, and you will soon receive it at (address)!'". The second part of this text, starting "(name), this is your big moment" was in larger text and partially highlighted. Smaller text below continued "I must admit nothing could be more satisfying than seeing a valuable reward like this go to a loyal customer like you, (name). That's why we specially chose only top performance Philip's [sic] products for these special loyalty prize and gift awards, including the Ambilight Television (with a 5-year warranty) and many battery chargers. You'll love what you're getting!".
Another page of the mailing headed "INTERNAL MEMO FOR REGIONAL QUALIFICATION" stated "On July 26th, the Prize and Gifts Department gave us the go ahead to select loyal customers worthy of our latest awards and rewards such as a Philips television with a 5-year warranty. One customer for immediate consideration is: (name) is eligible to receive 100% free A Philips prize with up to a 5-year warranty. This loyalty reward nomination was accepted and completed by the Spalding Officials and confirms that: ... 3/ One of our most loyal customers will receive this valuable prize according to the enclosed terms and conditions, and as confirmed below". Larger text below this, underlined in red, stated "The delivery of the Philips Ambilight television, valued at £949, is guaranteed". Underneath that, text continued " ... 4/ To become eligible to receive the Philips Television, (name) must place an order and return their delivery request as soon as possible, if all the conditions are met. 5/ While waiting for your (name) delivery request, our delivery services stand ready to rush the Philips television to (address)."
An enclosed slip of paper was headed "Delivery Request (name) You are 100% eligible to receive a Philips Television with a five-year warranty". Smaller text in a red banner underneath that stated "For the opportunity to receive it, complete the attached personalised delivery request". A box at the bottom of the paper included the text "READY FOR DISPATCH" alongside the signature of Mr E. Voeten, named as Promotions Manager.
Terms and conditions, which were included in a separate enclosure, stated "PURCHASE IS NECESSARY TO ENTER THE DRAW ... THE PRIZES OFFERED COMPRISE AT MINIMUM 1 X £5,000 CASH, 1 X PHILIPS AMBILIGHT TELEVISION WORTH £949 (INCLUDING A 5-YEAR WARRANTEE WORTH £182.99), 1 X PHILIPS DVD PLAYER AND MANY BATTERY CHARGERS WITH BATTERIES".
The mailing also included additional information relating to the possibility of winning £5,000 in a parallel prize promotion.
Issue
The complainant challenged whether the ad was misleading because it implied that the recipient would automatically receive a Philips TV if they placed an order with the company when that was not the case.
Response
Spalding Plant and Bulb Company said they had previously tested the mailing in Spring 2013 and that feedback from their customers had been positive. They said they had considered each part of the mailing, but that they could not find anything that implied that the recipient would automatically receive a Phillips television if they placed an order with the company. They said every mention of the TV was accompanied by a qualification that made clear the conditions of the promotion and gave examples of this within the mailing, such as the "Acceptance of Beneficiary" statement box that stated "Yes. I want to receive the Philips TV, and understand that I am 100% eligible to do so if a winner". They said the mailing frequently referred readers to the terms and conditions, which clearly stated that the promotion was a prize draw, and not a gift given away with an order.
Assessment
Upheld
The ASA noted that the terms and conditions included in the mailing stated that the recipient would be entered into a prize draw to win the Philips television upon purchasing a product from the company. We also noted a number of qualifying statements that referred readers to the terms and conditions of the promotion, such as "Delivery of this beautiful prize award guaranteed for one of our most valuable customers according to the enclosed terms and conditions". However, we considered every part of the mailing and noted a large number of statements within the mailing that implied the customer was guaranteed to receive the television, including "(Name), a Philips television is ready for delivery. Return your delivery request as soon as possible" and "Delivery Request (name) You are 100% eligible to receive a Philips Television with a five-year warranty". Similar statements were repeated throughout the mailing, including on the "INTERNAL MEMO FOR REGIONAL QUALIFICATION", which stated "... (name) is eligible to receive 100% free A Philips prize with up to a 5-year warranty". We considered that the relative prominence of those statements, and others such as "'... (name), this is your big moment. We have officially awarded a FREE Philips Television to you, and you will soon receive it at (address)!'" and "The delivery of the Philips Ambilight television, valued at £949, is guaranteed" contributed to that impression. Because the terms and conditions of the promotion were less prominent than the statements referring to the prize being offered, we considered that recipients were likely to understand that they were guaranteed to receive a Philips TV upon responding to the mailing. We therefore concluded that the mailing was misleading.
The mailing breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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. 8.19 8.19 Promoters must not claim that consumers have won a prize if they have not. The distinction between prizes and gifts, or equivalent benefits, must always be clear. Ordinarily, consumers may expect an item offered to a significant proportion of participants to be described as a ‘gift’, while an item offered to a small minority may be more likely to be described as a ‘prize’. If a promotion offers a gift to a significant proportion and a prize to a minority, special care is needed to avoid confusing the two: the promotion must, for example, state clearly that consumers “qualify” for the gift but have merely an opportunity to win the prize. If a promotion includes, in a list of prizes, a gift for which consumers have qualified, the promoter must distinguish clearly between the two. 8.20 8.20 Promoters must not exaggerate consumers' chances of winning prizes. They must not include a consumer who has been awarded a gift in a list of prize winners. 8.21 8.21 Promoters must not claim or imply that consumers are luckier than they are. They must not use terms such as "finalist" or "final stage" in a way that implies that consumers have progressed, by chance or skill, to an advanced stage of a promotion if they have not. and 8.21.1 8.21.1 Promoters must not falsely claim or imply that the consumer has already won, will win or will on doing a particular act win a prize (or other equivalent benefit) if the consumer must incur a cost to claim the prize (or other equivalent benefit) or if the prize (or other equivalent benefit) does not exist. (Sales promotions).
Action
The mailing must not be used again in its current form. We told Plantifor Ltd to ensure that their future mailings did not imply that recipients were guaranteed to receive a prize or gift if they were not.
