Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A press ad and a direct mailing for Atlas Editions promoted replica toy vehicles.
a. The press ad, seen in August 2016, promoted a “Dinky Toys Morris Mini-Traveller” replica car. The ad featured the claim "Yours for only £1.99 + free P&P. Absolutely No Commitment". Text in the body of the ad stated “Thanks to unprecedented public demand, we’ve secured just for you this 100% authentic model. Officially licensed and available only from us, this replica of the famous Dinky Toy Morris Mini-Traveller … is one of the most sought-after models from the entire Dinky Toys range”. Further text stated “Order now while stocks last. Risk free offer! This wonderful miniature whisks you back to that childhood wonderland as though by magic. Normally worth £14.99, the Dinky Toys Morris Mini-Traveller is yours exclusively for just £1.99 ... There is no obligation to buy anything else, ever. Simply call FREE on [NUMBER] or fill in and return the coupon and we will do the rest ... And remember, please send no money now".
b. The direct mailing, received on 30 April 2016, promoted the “Leyland Octopus Esso Tanker” replica truck. The ad featured the claim "Yours for only £2.99 + free P&P. Absolutely No Commitment" in several places. It also included the claims "Nothing else to buy GUARANTEED" and "Nothing else to buy - GUARANTEED! Risk free offer". Text within the body of the ad stated “Thanks to unprecedented public demand, we’ve secured just for you this 100% authentic model. Officially licensed and available only from us, this replica of the Dinky Leyland Octopus ‘Esso’ Tanker ... is one of the most sought after from the prestigious Dinky Supertoys range”. Further text stated “Order today and you’ll receive your officially licensed, 100% accurate Dinky Supertoys Leyland Octopus ‘Esso’ Tanker worth £14.99 for just £2.99 … Simply call us FREE on [NUMBER] or fill in the coupon opposite and we’ll do the rest. And remember, please send no money now!”. Further text stated “YOUR GUARANTEES. No need to send any money today. No need to buy anything else. No need to join a club. No quibbles return guarantee”.
Issue
1. One complainant, who understood that consumers were subsequently sent and charged for further models unless they cancelled and returned the subsequent items, challenged whether ad (a) was misleading by not making this clear.
2. A second complainant challenged whether ad (b) was misleading for the same reason.
Response
1. & 2. Atlas Editions said that both ads presented the replica toys as single product offerings for £1.99 and £2.99 respectively with free postage and packaging. They said customers who returned the ads’ postal coupons would be sent the item shown in each ad alongside an invoice and marketing pack, which asked customers to choose whether to build their collection via a subscription-based service or to just pay for the model they had received. They believed that the marketing pack made clear the two separate options that consumers could choose between. They explained that customers who purchased the product through the advertised website www.atlaseditions.co.uk, would be sent further models, but they could cancel and return those models at any time. If they just wished to purchase the advertised standalone items, customers just needed to inform them. They pointed out that the website included text in three different places along the customer journey that said that each month customers would receive a new model. Lastly, they said customers who purchased the toys over the phone would be offered the opportunity to upgrade their order by joining the subscription service, but it was not mandatory and customers could decline the offer. They provided a script that their customer service representatives used, which showed that customers were invited to take the subscription offer, but could also take the introductory offer and make a standalone purchase.
Assessment
1. & 2. Upheld
The ASA noted that the headline in ad (a) was “Dinky Toys Morris Mini-Traveller” and that it was accompanied by a prominent image of the model, while the text included claims such as “this 100% authentic model”, “one of the most sought after models” and “the Dinky Toys Morris Mini-Traveller is yours exclusively for just £1.99”. Similarly, the headline in ad (b) stated “the mighty Leyland Octopus ‘Esso’ Tanker” alongside a prominent image of the model, while the text included claims such as “this authentic 100% model”, “this replica” and “order today and you’ll receive your … Dinky Supertoys Leyland Octopus ‘Esso’ Tanker … for just £2.99”. In that context, and in the absence of any text to the contrary, we considered that consumers were likely to believe that the ads were promoting the standalone models for a one-off payment. We considered that this impression was further reinforced by the claims “absolutely no commitment” and “risk-free offer” that appeared in both ads, the claim “no obligation to buy anything else, ever” in ad (a), and the claims “nothing else to buy GUARANTEED” and “No need to buy anything else. No need to join a club” in ad (b), which implied that there would be no further commitment on the part of the consumer beyond the purchase of the individual items advertised.
We understood, however, that consumers purchasing the promoted items through the advertiser’s website would be sent other items from the Dinky Supertoys collection on a rolling monthly basis, and billed accordingly, unless they explicitly opted out. No direct mechanism was provided for customers to purchase a single model only, and instead customers had to “inform” the advertiser if they wanted to only receive one item. On the marketing pack sent to customers who returned ad (b)’s postal coupon, the predominant focus was on promoting the subscription service, while customers had to select the statement “No … I prefer to just pay for the Dinky Leyland Octopus replica that I have received” if they only wished to purchase the one item. Therefore, while we acknowledged that it was possible for consumers to just buy one item for the quoted fees, we considered that the ads were predominantly promoting a rolling subscription.
Because we considered that consumers were likely to believe that the ads were only promoting one-off purchases at the quoted fees, but were instead primarily promoting subscription-based collections in which they had to explicitly opt-out of paying for further models, we concluded that the ads were misleading.
The ads breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
3.4
3.4
For marketing communications that quote prices for advertised products, material information [for the purposes of rule 3.3] includes:
and
3.4.1
3.4.1
the main characteristics of the product
(Misleading advertising).
Action
The ads must not appear again in their current form. We told Atlas Editions UK Ltd to ensure that they made immediately clear that they were also promoting a subscription service and made clear the terms of the subscription service.
