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.
Marketers of subscription services often offer promotional deals to allow customers to try a subscription for a limited time at a reduced rate, or for free (a “free trial”).
If, in taking up a free trial or other subscription offer, consumers are signed up to a subscription service with ongoing payments, ads must make this explicitly clear, along with all significant information about the offer.
This guidance should be considered alongside CAP’s 'Guidance on the advertising of “free trials” or other promotional offer subscription models'.
Code rule 3.26 states that ads must not use the term “free trial” to describe “satisfaction or your money back” offers, or offers for which a non-refundable purchase is required.
Offers such as “Buy one, get one free” (BOGOF), or free items with purchase offers should not be described as “free trials” because the product cannot be tried without buying another product, the cost of which is not refunded.
Similarly, a “money back guarantee” should not be described as a “free trial” if the customer has the right to return the product for a refund if it is found to be unsatisfactory. Any promotion should be separate from customers’ satisfaction with the product or from their legal rights. In 2005, the ASA ruled that the use of "free trial" to describe a "100% satisfied or your money back guarantee" offer was misleading (HealthMail Ltd, 13 July 2005).
The phrase “free trial” should only be used if the product or service being offered is genuinely ‘free’ to the consumer. If there is an additional ‘delivery’ element to a free trial, it is acceptable to charge the genuine, un-inflated cost of postage, but consumers should not be charged for packing, packaging, handling, or admin fees.
See also 'Use of "free"'.
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead (Code rule 8.17). This information must be clear and upfront.
CAP’s 'Guidance on the advertising of “free trials” or other promotional offer subscription models' sets out the requirements of the Code in detail. This guidance makes clear that, when advertising subscription offers, significant information is likely to include:
- Whether a paid subscription starts automatically (after the trial) unless cancelled.
- The extent of the financial commitment if the subscription is not cancelled (during the trial).
- Any other significant conditions: for example, costs to participate.
An ad for a free trial of Amazon Prime was considered misleading because the ad did not make clear that a paid subscription started automatically after the free trial unless cancelled, or include the extent of the financial commitment consumers would make, if they did not cancel the subscription during the trial (Amazon Europe Core Sarl, 04 March 2015) . Instagram ads for boxer shorts which stated “try now for FREE” were also upheld by the ASA. The ads did not make clear that the ad was for a subscription service, and that, to get the free item, consumers had to sign up to a free trial for the service. In addition, the website linked to from the Instagram ad stated, “no strings attached, always cancellable [sic] online”, and did not make clear that customers had 14 days from signing up to cancel without charge, after which they would be enrolled in the subscription and would be charged for the next month. Because the ad omitted significant information about the subsequent subscription, it breached the Code (On That Ass, 15 February 2023).
Complaints about a promotion which offered multiple promotional items for £5, including a goody bag, exhibition tickets and five issues of British Railway Modelling magazine, were also upheld by the ASA. The ad did not make clear that, to claim these promotional items, consumers would have to sign up to a subscription for the magazine through a quarterly direct debit of £12.49, for a minimum term of one year. This information was considered material information that was likely to influence a consumer’s decision about the promotion, and therefore should have been made clear (Warners Group Publications plc, 01 April 2020).
Marketers should consider the terms for their promotions and ensure that any other significant conditions which apply are also included. Ads for limited free access to an online training course were considered problematic by the ASA for omitting significant information. In addition to not making clear that the free four-week access was a limited trial period, and that by signing up customers were entering into a subscription, the ad did not make clear that it was not possible to complete the full course in that time. Because consumers may have decided not to start the course, had they known that to complete it they would have to pay for access after the free trial, this information was considered significant (Shaw Academy Pvt Ltd, 07 July 2021).
For more general information about significant conditions and information see ‘Promotional marketing: terms and conditions and significant information’.
Significant conditions must be clearly stated in the initial promotional material. These must be immediately visible and prominent, so that consumers will see them before choosing to participate in the promotion. They should be distinct from other information, immediately follow the most prominent references to the trial or offer, and must be clear and legible both in size and clarity of font. It is unlikely to be acceptable to include these terms 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, and these should be stated in the ad itself (Warners Group Publications plc, 01 April 2020). It is also unlikely to be acceptable to include these in a pop up box only (WHG (International) Ltd t/a William Hill, 05 October 2016).
CAP’s 'Guidance on the advertising of “free trials” or other promotional offer subscription models' provides examples which demonstrate how to make significant conditions clear.
Rule 8.18 states that "Marketing communications that include a promotion and are significantly limited by time or space must include as much information about significant conditions as practicable and must direct consumers clearly to an easily accessible alternative source where all the significant conditions of the promotion are prominently stated. Participants should be able to retain those conditions or easily access them throughout the promotion.".
Whilst this may allow some scope for marketing communications which are significantly limited by time and space to direct consumers to significant conditions, rather than including them all in in the ad itself, marketers are advised that the ASA has rarely considered ads to be sufficiently limited by time or space for this rule to apply. This is likely to be limited to sponsored ads on search engine sites and extremely small banner ads, however, the ASA will consider each ad on a case-by-case basis. If it is not possible to include all relevant significant conditions within an ad, marketers should carefully consider whether the chosen media type is suitable to promote the offer.
Advertiser’s own websites, emails, social media posts, leaflets or posters are not considered limited by time or space, and as such should state all significant terms and conditions (see Hard Rock Café (UK) Ltd, 11 February 2015 and Daub Alderney Ltd t/a Lucky Pants Bingo, 06 July 2016).
Even if an ad is significantly limited by time or space, marketers must still include as much information as practicable, and should think carefully about how this information could be included, for example, by including text in an image.
Limited space might dictate where the information appears but does not change the requirement to provide that information in a clear way that can be retained or accessed by consumers.