It has long been the case that marketers must ensure that they do not describe a product or service as “free” if it is not. This may seem straightforward, but the ASA regularly considers complaints about ads for products or services which at first glance appear to be free, but upon closer inspection are anything but.
It is generally understood by consumers that marketers are unlikely to give away products or services completely free of charge without some sort of condition or obligation on behalf of the consumer in order to redeem them. Because of the numerous ways in which the word “free” is likely to be used by marketers, CAP and BCAP have produced a joint Help note which provides guidance to marketers.
The rules on using “free” in marketing communications are mirrored in the broadcast and non-broadcast Codes but for simplicity, here we will quote the UK Code of Non-broadcast advertising. The section of the Code dedicated to the use of free in marketing communications is captured more broadly by the overriding principle of the section.
What do the rules mean and how do they work in practice?
Pure “free” claims
Products and services can only be described as “free” if consumers are not required to pay for anything other than the “unavoidable” and “true” cost of responding. This rule is intended to prevent marketers from artificially inflating delivery costs which render the “free” claim inaccurate and misleading. CAP has issued specific guidance on Postage and Packing.
Conditional purchase promotions
The word “Free” must not be used in instances where the price of the item (which must be purchased to take advantage of the free offer), has been increased above its normal cost. In 2011, the ASA adjudicated on a complaint about an ad for a magazine subscription which offered readers a “free gift”. It found that the subscription was available without the “free gifts” at a lower price, which meant that it was not accurate to describe those items as “free” or “gifts”. CAP Guidance in this area is outlined further in Free: Sales promotions.
Marketers often wish to highlight an offer that forms part of a package, especially if that offer includes elements that are more advantageous than competitor packages.
A package comprises a pre-arranged combination of features where customers cannot exercise genuine choice on how many elements of the package they receive for the price. For example, the ASA considered an ad for a multi-media package which included a set-top box, a monthly fee and a one-off activation fee at an all-inclusive price and each element was intrinsic to the quality and composition of the bundle. The ASA ruled that, because customers could not exercise genuine choice over which elements they received for the paid price, individual elements of the package price could not be described as “free”.
Marketers can describe a feature of bundle or package as being free (if the price of the package has not increased) if that feature has been recently added and is not intrinsic to the product or service being advertised. However, once that inclusion becomes the norm, it becomes part of the package and therefore not distinguishable as an additional benefit and therefore, not “free”.