A page on Amazon.co.uk, seen in May and June 2019, which formed part of the checkout process. Text stated, “… we’re giving you a 30-day free trial of Amazon Prime! Starting with this order …”. A gold box included text which stated, “Order Now with Prime”. That box was contained within a larger grey box. Text underneath the gold box, but within the grey one, stated, “Continue with FREE One-Day Delivery Pay later”. An option to the left in blue text stated, “Continue and don’t gain Amazon Prime benefits”. Small print at the bottom of the page stated, “By signing up you acknowledge that you have read and agree to the Amazon Prime Terms and Conditions and authorise us to charge your credit card … after your 30-day free trial …”.
Ten complainants, who believed the presentation of the options was unclear, challenged whether the ad was misleading.
Amazon Europe Core Sarl said the first option displayed on the checkout page, displayed in the gold box, offered consumers an opportunity to place their order and enjoy a 30-day free trial of Amazon Prime. That gold box sat within a larger grey box that provided additional information about that option. The second option was a blue hyperlink which stated “Continue and don’t gain Amazon Prime Benefits” to the left of the grey box. By clicking that link, consumers could continue with their order without signing up or gaining Prime benefits. Amazon said the EU Consumer Rights Directive required them to include the ‘pay later’ wording that was included in the grey box to ensure that consumers were clear that there was an obligation to pay if they wished to continue with their Prime membership once their trial had ended.
As part of their efforts to improve the signup experience for their customers, they said they periodically adjusted the way they presented the two options on the page, and used customer satisfaction data to inform such adjustments and identify potential issues. They said their primary objective was to make sure that consumers who joined Prime did so intentionally and became active members who would make the most of their Prime benefits.
Amazon provided confidential data on the number of consumers who visited the page and clicked on the option to continue without Prime. They believed that data showed consumers were clear that “Continue and don’t gain Amazon Prime Benefits” allowed them to continue with their order, without signing up for Prime. They said customers who cancelled at any time during their 30-day trial period could still take advantage of their Prime benefits for the entire 30-day duration of the trial. They said a very small number of members who signed up through the page cancelled their membership within three days of signing up, and the vast majority of members who signed up through the page made active use of their membership benefits (including delivery and digital) during their 30-day free trial, and once the free trial had ended. They also provided us with confidential data in relation to those points. They believed that showed consumers expressly intended to sign up and had not been misled, and they were therefore confident that the presentation and wording on the page was clear to their customers. They said while the font used for “Order Now with Prime” was bold, that text and the text stating “Continue and don’t gain Amazon Prime benefits” were the same size. Similarly, the two options were horizontally aligned and presented opposite each other on the page. They believed that was a normal and universally accepted way to present two alternative options on a web page. Furthermore, the text was blue, indicating it was a clickable hyperlink. They said that was the standard colour for hyperlinks on Amazon.co.uk, as with all other links on the page.
The ASA noted that the ad used various different ways to present information on the page, including a roundel, a table, and a tick list, as well as the options to continue. We understood from Amazon that there were two options in total: to sign up for a 30-day free trial of Amazon Prime, including free ‘one-day’ delivery with the order (that would automatically convert to a paid membership plan after 30 days if not cancelled), or to continue with an order without signing up for the trial of Prime.
The option to sign up for the trial of Amazon Prime was a grey box with a gold box inside. Text in the gold box stated “Order Now with Prime”, and we considered that the average consumer was likely to understand that to be one discrete option. Directly beneath that, and still within the larger grey box, text stated, “Continue with FREE One-Day Delivery Pay later”. We considered that the presentation and wording of that text meant it was likely to be seen by the average consumer as a separate option. However, we understood that, in fact, both boxes were part of the same option. The option to continue without signing up for the trial was presented as text stating “Continue and don’t gain Amazon Prime benefits”, which was small and placed in a position which could easily be missed by consumers. It was also in a faint colour, and compared to the option presented in the grey and gold boxes it was significantly less prominent. We considered that the average consumer was likely to view the text within the grey and gold boxes as the only two options available, with the ‘option’ in the grey box allowing them to continue without signing up to Prime, when that was not the case. Evidence of the number of consumers who clicked on the non-Prime option on any given day did not demonstrate that they had done so without first mistakenly clicking on the Prime option the first time they saw the options. Similarly, evidence of the numbers who chose to take advantage of Prime benefits, having signed up to the free trial, and of those who ended up paying for Prime membership at the end of the trial period, did not demonstrate that those consumers had not been misled into clicking the Prime option in the first instance. There was little incentive to cancel during the free trial period and no way of determining whether those who paid for Prime membership did so because they had intended from the outset to do so, or because they had not initially intended to do so but had been convinced of the value of the service during the trial period, or because they had intended to cancel before the end of the trial period but failed to do so.
The information provided by Amazon did not demonstrate that the average consumer was not likely to be misled by the presentation of the options. Because we considered that the average consumer was likely to view the text within the grey and gold boxes as the only two options available, with the ‘option’ in the grey box allowing them to continue without signing up to Prime, when that was not the case, we concluded that the presentation of the options was likely to mislead.
The ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.9 (Qualification).
The page that formed part of the check-out process should not continue to appear in the form complained of. We told Amazon Europe Core Sarl to ensure that options relating to signing up to Amazon Prime, or to continue without doing so, were presented clearly and prominently in future.