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.
The Code makes clear that marketing communications must not describe a product as "free” if the consumer has to pay anything other than the unavoidable cost of responding and collecting, or paying for delivery, of the item.
Free offers can be conditional on the purchase of other items, however, it must be clear how customers can get the free item, the quality of the paid for item should not be reduced, and customers should not have to pay anything other than uninflated postage costs. Items that are included in a package price must not be described as “free”.
The rules and guidance apply to any word which is likely to mean the same as ‘free’ in the context of the ad. Claims such as “gratis”, “complimentary”, “without charge” and similar are likely to be understood to mean “free”.
Make it clear how customers can take advantage of a ”free” offer
Don’t charge anything other than uninflated postage cost
Don’t compensate by inflating other costs or reducing quality
Conditional purchase promotions
Free vs inclusive
Free trials and satisfaction or your money back offers
Make it clear how customers can take advantage of a free offer
Code rule 3.23 states that ads must make clear the extent of the commitment the consumer must make to take advantage of a “free” offer. If consumers must make a purchase, sign up to a newsletter or open a subscription to receive something for free, this information must be clearly included in the ad. An ad which offered a “free pair of hands-free binoculars for every reader” on the front page of a magazine was upheld because the ad did not make it clear that customers would only qualify for the free product when making a purchase (Winning Deals Ltd, 06 August 2014). See also Proacademichelp.co.uk, 11 September 2019.
Similarly, Instagram ads for boxer shorts which stated “try now for FREE” were upheld by the ASA. The ads did not make clear that the service was a subscription service, and that, to get the free item, consumers had to sign up to a free trial (On That Ass, 15 February 2023). If advertiing a "free trial" subscription offer like this, the ad should make clear whether a paid subscription starts automatically (after the trial) unless cancelled, if so, the extent of the financial commitment if the subscription is not cancelled, and ay other significant conditions. For detailed guidance on free trials see ‘Promotional marketing: subscription offers and free trials’.
Don’t charge anything other than uninflated postage cost
Promoters wishing to offer “free” goods must not charge for anything other than postage. Other fees such as packaging, packing, administration, handling, or insurance should not be passed on to the consumer. The cost of postage should not be inflated by the advertiser to compensate for giving away the free item.
The ASA upheld complaints about an app for a photo printing company which stated “FREE PHOTO PRINTS DELIVERED TO YOUR DOOR”. In some cases, consumers were paying more than the minimum cost of postage to obtain the “free” prints, therefore the prints should not have been described as “free”. In addition, the ad breached the Code because it did not make clear that consumers had to pay for postage to obtain the free prints (PlanetArt UK Ltd, 03 August 2022).
Don’t compensate by inflating other costs or reducing quality
Code rule 3.24.2 states that products must not be described as “free” if “the cost of response, including the price of a product that the consumer must buy to take advantage of the offer, has been increased, except where the increase results from factors that are unrelated to the cost of the promotion”.
The ASA considered that consumers would understand the claim “gift” to be synonymous with the claim “free”, when investigating complaints about ads for a magazine which stated “fabulous exclusive gift”. In this case, there was a relationship between the total price of the magazine and the value of the gift which came with that issue, and issues sold at a higher price had gifts of an objectively greater value. Therefore, the promotional item did not offer a genuine additional benefit received as a result of purchasing the magazines, and the claim “gift” was misleading (Practical Publishing Ltd, 4 September 2019). An online ad for a TV which included a “FREE LG SH7 sound bar” for £1999 was ruled against by the ASA because the TV was previously sold on its own for £1749 and the price had been increased when the soundbar was added (John Lewis, 12 July 2017).
If offering a product for free, marketers must not reduce the size or quality of the item that is being offered to reduce the costs incurred by offering something for free (Rule 3.24.3). For example, if a free beauty product is being offered with a magazine and the usual selling price is stated, the product must not be smaller in size than the product which the consumer would otherwise buy.
Whilst marketers can charge postage costs, these should not be inflated by the marketer to cover the costs of offering the free item.
Conditional purchase promotions
If the item that is being described as "free" is genuinely separate from and additional to the item that the customer is required to pay for, the offer qualifies as a conditional-purchase promotion and the item may legitimately be described as "free". Examples of conditional purchase promotions include; where the paid-for item is separable from the free item, for example, a free lipstick with the purchase of a magazine.
An ad for a promotion which stated “two can dine for £10 with free wine” was considered a conditional purchase promotion and was not upheld because the wine was genuinely separable from the paid-for items, was not supplied with the paid-for items unless the customer complied with the terms of the promotion, and the price remained the same with or without the free item (Marks and Spencer plc 24 December 2014).
Where an item is not genuinely separate from, and additional to the item(s) that the customer has to pay for, it may be considered an inclusive part of a package price and should not be described as “free” (see ‘Free vs inclusive’ below).
When offering free items as part of a promotion marketers should consider our advice on promotional marketing, and on the availability of promotional items.
Free vs inclusive
In contrast to a conditional-purchase promotion, the CAP Code prohibits the use of “free” to describe “an individual element of a package … if the cost of that element is included in the package price” (Rule 3.25).
Something is likely to be considered a package if:
- It offers a combination of features or products for one long-term, inclusive price.
- Customers cannot exercise genuine choice on how many elements of the package they receive for that price.
- Each element is intrinsic to the quality and composition of the package being advertised for that price.
Because customers cannot exercise genuine choice over how many elements they receive for the price paid, and the elements are all usually included in the package price, none of the elements should be described as “free”.
Ads for a magazine offered a “free gift” with magazine purchases. Because all issues of the magazine came with a “gift”, the magazine was not usually sold at £5.99 without any promotional items, and those promotional items did not have a standalone price separate from the price of the magazine. Therefore, the ASA considered that the promotional items that were described as “free … gifts” were actually included in the price of each magazine issue, and should not have been described as “free” (Practical Publishing International Ltd, 16 May 2018).
An ad for a camera which cost £179.99 and included the text “plus free 16GB SD Card & Case” was considered misleading because the same camera was for sale at the same time without SD card for £159.99. Because the camera and the SD card cost more when bought together than the camera on its own, the SD card was not genuinely “free”, and this was included in the package price (Argos Ltd, 25 April 2018). If consumers can pay for delivery in advance, for example, by paying a set price for unlimited next day delivery for a year, delivery should not be referred to as “free”, the cost of delivery is included in the up-front cost of the service, even if that cost is reduced (Ozsale Pty Ltd, 12 December 2018).
If marketers add an element to an existing package, without increasing the price of the package or reducing the quality or composition of the elements that are already included in the package, they may describe that added element as “free” for a limited period. Once the element has formed part of the package for a certain period, consumers are likely to regard it as a standard “inclusive” feature of the package. As a rule of thumb, marketers should avoid describing elements that have formed part of a package for more than six months as “free”.
Free trials and satisfaction or your money back offers
Promoters should not use the term “free trial” to describe “satisfaction or your money back” offers, “buy one get one free” offers or other offers for which a non-refundable purchase is required (Rule 3.26).
For detailed guidance on free trials see ‘Promotional marketing: subscription offers and free trials’.
This advice is designed to be read in conjunction with the Misleadingness and Promotional marketing sections of the CAP Code (Sections 3 and 8).