Cookies policy statement
We are using cookies on our site to provide you with the best user experience.
Disabling cookies may prevent our website from working efficiently. Click ok to remove this message (we will remember your choice).
OK

ASA Ruling on Beyond Nutra Ltd

Beyond Nutra Ltd t/a beyondraspberrykeytone.co.uk

D11 Glyme Court
Oxford Office Village
Langford Land
Kidlington
Oxfordshire
OX5 1LQ

Date:

27 March 2013

Media:

Internet (sales promotion), Internet (on own site)

Sector:

Health and beauty

Number of complaints:

1

Agency:

None

Complaint Ref:

A12-217447

Background

Summary of Council decision:

Three issues were investigated, of which two were Upheld, and one was Not upheld.

Ad

A website, www.beyondraspberryketone.co.uk, for a diet product, was headed "Beyond Raspberry KETONE LOSE WEIGHT AND FEEL GREAT WITH BEYOND RASPBERRY KETONE". An arrow, which pointed at a form where website visitors entered their name and contact details, had the text "ACT NOW AND GET YOUR TRIAL!" on it. The form was headed "TELL US WHERE TO SEND YOUR TRIAL!". Next to a tick box, text stated "I agree to the Terms and Conditions of this site". The text "Terms and Conditions" was linked to a pop-up box which listed terms and conditions. Underneath that text, a button stated "RUSH MY TRIAL".

The long web page included information about the product, its ingredients and 'before and after' images of people who had used the product. At the bottom of the web page, text stated "Get Your Trial Today!" next to a button labelled "RUSH MY TRIAL". Clicking on the button took the website user back to the top of the page. Small print at the bottom of the page stated "Home | Contact Us | Terms | Privacy". Clicking on "Terms" brought up the Terms and Conditions pop-up box. The terms and conditions included text which stated "The 14-day trial offer for Beyond Raspberry Ketone includes enrolment in our auto home delivery program, which is subject to the auto home delivery programme terms described below. The 14-day trial period starts the same day of purchase. We do not guarantee arrival dates or times ... You will receive an e-mail notice confirming your order so that you know when your trial period starts and when your card has been charged for shipping and handling, or if you didn't receive your e-mail [sic] ... You must contact customer service before the end of the 14-day trial period to cancel and avoid further charges. If you do not cancel, we will charge £79.95 on the day your trial period ends ... and you will continue with the auto delivery program".

Issue

The complainant challenged whether:

1. the ad was misleading, because it did not make clear that significant conditions applied to the promotion, such as the condition that consumers must cancel and return any unused product within 14 days or be charged £79.95 and be automatically enrolled into receiving a monthly supply at the cost of £79.95 per month;

2. the promotion had been administered fairly, because they had not received an e-mail confirming when the trial would begin and end; and

3. the ad breached the Code, because it did not make clear the marketer's geographic address.

CAP Code (Edition 12)

Response

Beyond Nutra did not respond to the ASA's enquiries.

Assessment

Upheld

The ASA was concerned by Beyond Nutra's lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and we told them to do so in future.

1. Upheld

We considered the prominent claims such as "TELL US WHERE TO SEND YOUR TRIAL!", "ACT NOW AND GET YOUR TRIAL!", "RUSH MY TRIAL" and "Get Your TRIAL Today!" would be understood by consumers to mean that they were signing up only to receive a trial bottle of the product, for which they would not be charged. We noted that the terms and conditions pop-up box included information with regard to the charges that would be incurred if consumers did not cancel and return the product within 14 days; we considered that information constituted significant conditions and costs which were reasonably likely to influence consumers' decisions and understanding about the promotion and which therefore must be presented clearly to consumers. However, we considered that including that information only in a pop-up box linked to small text was not sufficient. We considered that all references to the 'trial' in the main body copy of the ad should have been immediately followed by qualifying text which made clear that charges would be incurred if consumers did not cancel within 14 days. We concluded the promotion was misleading.

On this point, the ad breached CAP Code rules 3.1 and 3.3 (Misleading advertising), 3.9 and 3.10 (Qualification), 8.2 (Sales Promotions) and 8.17.1 (Significant Conditions for Promotions).

2. Upheld

We noted the terms and conditions in the pop-up box stated "You will receive an e-mail notice confirming your order so that you know when your trial period starts ...". We understood the complainant had not received such an e-mail and therefore had not received confirmation of when the trial began and ended, and therefore had not been fully informed of the date by which they must return the product if they were to avoid being charged. In the absence of any evidence to show that those e-mails had been sent to customers, we concluded the promotion had not been conducted equitably, promptly or efficiently and had not dealt fairly and honourably with participants.

On this point, the ad breached CAP Code (Edition 12) rule 8.2 (Sales Promotions).

3. Not upheld

We noted that the Code required distance selling marketing communications to provide a geographical address. We noted that the Terms and Conditions pop-up box, and a web page accessed through the "Contact Us" link at the bottom of the web page, included a geographical address for the advertiser. We therefore concluded the ad did not breach the Code in that regard.

On this point, we investigated the ad under CAP Code (Edition 12) rule 9.1 (Distance Selling) but did not find it in breach.

Action

The ad must not appear again in its current form. We told Beyond Nutra to ensure significant terms and conditions were clearly stated in their promotions and to conduct their promotions equitably, promptly and efficiently and deal fairly and honourably with participants. We referred the matter to CAP's Compliance team.

How to comply with the rules

For advice and training on the Advertising Codes please visit the CAP website.

Latest tweets

Make a complaint

Find out what types of ads we deal with and how to make a complaint.

Press Zone

This section is for journalists only. Here you will be able to access embargoed material, breaking news and briefing papers as well as profile details for the ASA press office.