Summary of Council decision:
Two issues were investigated, both of which were Upheld.
An ad on www.revuetendanceconso.com/dossier-achats-vip-2013 promoted "Enchere VIP", an online paid auction website and was written in French. The ad was presented as a news article and the translated headline stated "How to Save 90% on an iPad 4 or iPhone 5? The Consumer Review examines new trends in 2013". Further text stated "You have probably noticed a new phenomenon developing in Europe and North America. Stock liquidation auction websites. All over the net, on blogs, you can read the stories of happy winners who have won fabulous, and usually very expensive, items for just a pittance. But we weren't 100% convinced and so we decided to test them. To ensure that the deals offered by these sites were real ...". The ad then described the reviewer's positive experience of "Enchere VIP" and the fact they had paid only € 67.50 for a HD TV and €163 for a MacBook Pro. Further text under the heading "Detailed Instructions for EnchereVIP" stated "... Step 1: Create an account on Enchere VIP and receive your free bids. Click our exclusive link to get a discount and 50 free bids! The trial offer expires Wednesday, October 9, 2013 Coupon code: VIP50 Step 2: Find an auction that you are interested in and start bidding and Step 3: If you win an auction, you will be redirected to the checkout where you can pay for your item and enjoy a high discount!". Text at the bottom of the article stated "PS Enchere VIP have agreed to extend their offer for our readers. Enjoy it while you can!".
A number of reviews were then listed beneath the article. The words "Enchere VIP" in the text linked to a sign-up page for the site, again in French.
The complainant challenged whether:
1. the ad was misleading, because he believed it was presented as a news article and did not make clear it was marketing material; and
2. the expiry date for the trial offer was misleading and could be substantiated, because he understood it was updated every day.
Sophora Media Ltd said they had not authored the ad, but that it had been created by one of their affiliate partners. They acknowledged, however, that the ads were potentially misleading and said they had instructed the affiliate to withdraw the ad, and it was no longer appearing. Finally they said they had received confirmation from the affiliate in question that they would respect Sophora Media’s conditions in future, and no longer display any potentially misleading claims on any media.
The ASA welcomed Sophora Media's assurances that the ad had been removed. We noted that CAP Code rule 1.8 stated that primary responsibility for observing the Code fell on marketers and that others involved in preparing or publishing marketing communications, such as agencies, publishers and other service suppliers, also accepted an obligation to abide by the Code. We noted Sophora Media's explanation that the ad had been created by an affiliate, but we considered that, because the ad linked through to Sophora Media's website and they therefore benefited every time a consumer took up the offer as a result of clicking on the ad, Sophora Media had primary responsibility for ensuring the ads complied with the Code.
We considered that the presentation and content of the website implied that it was an editorial piece which had been written by an independent party. Because that was not the case, and the piece was not clearly marked as an advertorial, we considered it was not clear that the ad was a marketing communication and we concluded that it was misleading.
On that point, the ad breached CAP Code (Edition 12) rules
Marketing communications must be obviously identifiable as such.
Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature".
(Recognition of marketing communications),
Marketing communications must not materially mislead or be likely to do so.
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. (Misleading advertising).
In the absence of evidence to demonstrate that the offer expired on the date stated in the ad, we concluded that the claim had not been substantiated. Therefore, we concluded that the claim was misleading and in breach of the Code.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 8.17 8.17 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. Significant conditions or information may, depending on the circumstances, include: and 8.17 8.17 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. Significant conditions or information may, depending on the circumstances, include: 4.e (Significant conditions for promotions).
The ad must not appear again in its current form. We told Sophora Media Ltd to ensure they held adequate substantiation for their claims, and to mark any advertorials clearly in future.