Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
“Free trial” offers are often presented as a way for consumers to try a new product for a set period of time, without incurring a cost.
In principle there is nothing wrong with this, but if, in opting to take up the free trial, consumers are automatically signed up to a subscription service and this is not made explicitly clear in the initial ad, the ad is likely to be considered misleading. Ads for free trial offers (or similar promotions), which do not make clear that a consumer must enrol into an ongoing payment arrangement to take advantage of the offer are known as “subscription traps”.
In line with rule 8.17, ads for promotions must state all significant conditions likely to affect a consumer’s decision to participate in the promotion. As such, marketers of “free trial” style offers are advised to ensure their ads make the nature of any financial commitment explicitly clear (Kelly's Veggies Ltd, 16 September 2015 and HiLife Health & Beauty Pty Ltd, 3 December 2014).
CAP’s guidance on the advertising of “free trial” - or other promotional offer - subscription models sets out the requirements of the Code in detail, but marketers will need to consider their own promotions and the associated terms and determine what should be included. If marketers are unsure whether a particular condition is likely to be required in the ad, they should contact the CAP Copy Advice team for guidance, but this is likely to include:
• Whether a paid subscription starts automatically (after the trial) unless cancelled and;
• The extent of the financial commitment if the subscription is not cancelled (during the trial) and;
• Any other significant conditions: for example, significant costs to participate.
Significant conditions must be stated with sufficient prominence so that consumers will see them before choosing to participate in the promotion. As such, advertisers should avoid stating these in areas where consumers may not see them before signing up for the offer, such as at the bottom of a long webpage or otherwise away from prominent references to the offer (Amazon Europe Core Sarl, 4 March 2015).
As with all promotions, simply stating “T&Cs apply”, “See website for terms” or similar, is unlikely to be considered sufficient to make the relevant conditions clear to consumers.
For more information and examples of how to make significant conditions clear in ads for “free trial” style offers, please see our guidance here.
Under rule 8.18, there is some scope for ads for promotions which are significantly limited by time or space to not state all significant conditions. Marketers are advised, however, that only in extreme circumstances will a media type be considered to be “significantly restricted by time or space” and this is likely to be limited to sponsored ads on search engine sites and extremely small banner ads.
Furthermore, even if an ad is considered to be “significantly restricted by time or space”, marketers may still fall foul of Code if they omit significant conditions and if it is not possible to include all relevant significant conditions within an ad, marketers should carefully consider whether the media type in question is suitable to promote such an offer.