Summary of Council decision:
Two issues were investigated, of which one was Upheld and the other Upheld in part.
Two emails to an individual with a garden design company, from the trade magazine Build:
a. The first email, sent in January 2018, stated “We have recently opened voting for the 2018 Landscape & Gardening Awards on the BUILD website, and I’m delighted to inform you that #company# has received a nomination this year!... For the second consecutive year, we will endeavour to ensure that only the best are recognised, and through our meticulous and extensive process, we will only select the best that each sector has to offer. At this stage, all I need to know is whether you are happy to take this forward. If you would like to proceed with the nomination and be added onto this years’ shortlist, please click here: #ACCEPT#... Please note that there are no mandatory costs throughout the entire process, nor if you should go on to be selected as a winner”.
b. The second email, sent 16 February 2018, was titled “BUILD 2018 Landscape & Gardening Awards” and the subject stated “Exciting news for [recipient’s company name]!”. Text in the body of the email stated “…I am sure you will remember shortlisting for the second annual Landscape & Gardening Awards, proudly hosted by BUILD. With the results now in, I am delighted to be the bearer of good news, and confirm that #company# has been successful this year! [Recipient’s company name] has been awarded: Best Garden Design Company - Surrey”.
Further text stated “As a successful nominee, you are welcome and entitled to select BUILD’s Complimentary Package, which comprises the official press release and inclusion within our SEO online celebratory directory. We will also be producing a celebratory magazine for those whom would like to gain further exposure to our industry-rich, and highly-engaged worldwide readership. This will be digitally distributed to our circulation of over 110,000 industry professionals, and will be held on the BUILD platform for a minimum of 12 months. The available packages are listed below... Please note that all packages are available on a ‘Pay Now’ discounted price”. The email listed four packages at different prices, ranging from £425 to £3,295, and prices for standalone advertising items. The various options included editorial content, front-cover images, logos and headlines, certificates, trophies, and website banner ads.
The complainant, who on receiving ad (a) submitted an entry for the award, challenged whether the ads:
1. misleadingly implied that the recipient's company had been nominated for and had won an award, when they believed that was not the case; and
2. did not make sufficiently clear the advertiser’s commercial intent to sell advertising space.
AI Global Media Ltd t/a Build said the Landscape and Gardening Awards programme was launched in 2017, and provided examples of their supplementary celebratory magazine announcing the winners, and the list of winners on their website, from the last two years to demonstrate that they produced the items as referenced in ad (b).
Build explained that nominees were entered into the awards via three routes: a third-party vote (using a voting form on their website); a self-nomination; or by Build’s own nomination, whereby their in-house team of researchers investigated and identified nominees. Build said in the 2018 awards they had nominated 644 nominees who were identified by their research team, and they received 19 votes from third parties or via self-nomination.
All nominees were contacted by email and given the chance to accept or decline a nomination, and those who accepted were added to the shortlist and asked to provide a submission with supplementary information. Once the deadline for supporting information had passed, Build’s award research team gathered information from various sources to create a case file for each nominee; they provided the complainant’s case entry and case file. The research, votes and supporting documentation in each case file were combined and reviewed by the senior judging panel to determine the winners. The panel took into account criteria including market reputation, company size and reach, skills and services offered, customer reviews and testimonials, completed projects if applicable, and supporting evidence questionnaires completed by the nominees.
The research team included four staff members, and the senior judging panel was comprised of five senior leaders from AI Global Media Ltd including the head of judging, who was a former academic leader. Build said they did not have a pre-determined set of categories for the awards at the nomination stage, and the voting form included a blank text box for voters to add their preferred category. They said that at the research phase of the process, once submissions had been received, they considered the specific category options. Because there were no instances of multiple potential winners in any one specific category, Build said the judging panel assessed the nominees against the criteria outlined above, rather than comparatively against the submissions of other nominees in the same category. They also said many candidates were filtered out at the research and judging stage because they had not convinced the panel that they were suitable for an award.
Build said that paying for promotion had no link to success because winners were informed of their success in the first instance, while marketing options were discussed afterwards. They said there were no costs in accepting a nomination or winning, and highlighted that the ads stated there was a free-of-charge option that clients could select, which was inclusion on the winners list on the website and Build’s press release. They said the paid-for promotional packages for winners were optional, such as inclusion in the celebratory magazine.
Build said they did not have terms and conditions for the awards but would consider introducing them in future. They instead provided a summary of the awards process in their response.
The first email included the statements “We have recently opened voting…I’m delighted to inform you that #company# has received a nomination this year!”, and “through our meticulous and extensive process, we will only select the best that each sector has to offer”. The ASA considered that recipients would understand those claims to mean that their work had been recognised, independently by another party that was not AI Global or themselves, who had nominated them for the awards by voting for them. Recipients would therefore reasonably expect that the invitation to enter the awards had not been sent widely to hundreds of other recipients, and would understand the ad to mean that there would be a robust judging process of the recipient’s entry against those submitted by their peers. We also considered the claim in the second email “With the results now in, I am delighted to be the bearer of good news, and confirm that #company# has been successful this year! [Recipient’s company name] has been awarded: Best Garden Design Company - Surrey” would be interpreted to mean that the recipient had been selected as the winner of a group of submissions in that category.
We understood that Build had identified and nominated 644 companies for their 2018 awards, to which they sent email ad (a), and that only 19 votes were received from other parties. We considered that the first email did not make sufficiently clear that the recipient had been contacted by Build in an exercise to generate entries for the awards, and therefore misleadingly implied recipients had been nominated for an award as a result of votes received by another party.
We also understood that the award categories were only determined after the submissions from nominees were received by Build, and therefore categories were structured around the entries. As such there was only one nominee in each category and the entries were not judged comparatively against other entries submitted by the nominee’s peers. It was therefore possible for a large number of nominees who had submitted an entry to win an award. In the 2018 awards, 138 companies were listed in the directory of all winners and 18 were featured in the celebratory magazine. The first email described a “meticulous and extensive” selection process. However, we had not seen any evidence demonstrating that during the nomination or judging stages the nominees had been assessed against specific criteria, or judged competitively against each other. We noted Build’s comments that they filtered out many entries in the research and judging stages. They had not, however, provided evidence demonstrating that was the case and we understood that there was a total of 156 award winners in 2018. Additionally, we were concerned there were no terms and conditions for the awards, or an outline of the judging process, made available to participants.
The ads implied that recipients had been nominated for the awards after a voting process and that there was a robust judging process which had resulted in their selection as a category winner, when we understood that was not the case. For those reasons, and in the absence of adequate substantiation for the claims as they would be understood, we concluded that the ads were misleading.
The ads breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
2. Upheld in relation to ad (a) only
The Code stated that marketing communications must not falsely claim or imply that the marketer was acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that was not obvious from the context.
We considered consumers would understand that the purpose of ad (a), the first email, was to inform selected recipients that they had been nominated for the awards, and to encourage them to participate in the process. Although ad (a) stated “Please note that there are no mandatory costs throughout the entire process, nor if you should go on to be selected as a winner”, it did not explicitly refer to the packages and advertising space that was later offered to winners at the end of the selection process.
Ad (b), the second email notifying the recipient they were an award winner, outlined the various packages which could be purchased to promote the winner’s business through a celebratory supplementary magazine and online. It also stated that recipients could select the “Complimentary Package”, which meant being listed on the directory of winners on the Build website and included in a press release. The winners directory was not positioned prominently on the website, and in order to display the full list criteria had to be selected. We considered that Build did very little to promote the award winners who had not purchased the advertising packages.
In that context, we considered that a primary objective of the ads was to sell packages of advertising space to recipients. The advertiser’s intent to sell that advertising space was only disclosed at the end of the process in ad (b), after nominees had participated by submitting their entries. We therefore concluded that the commercial intent of the marketing communications had not been made sufficiently clear initially in ad (a), and that it breached the Code.
Ad (a) breached CAP Code (Edition 12) rule 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications).
We also investigated ad (b) under CAP Code (Edition 12) rule 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications), but did not find it in breach.
The ads must not appear again in their current form. We told AI Global Media Ltd t/a Build to ensure that their future ads did not misleadingly imply that recipients had been nominated for awards following a voting process, or that there was a robust judging process which had resulting in their selection as category winners, if that was not the case. Additionally future marketing communications must make clear their commercial intent to sell advertising space, if that was not obvious from the context.