Background
Changes to Advertising Code following DMCCA 2024
On 7 April 2025, the Advertising Codes were updated to reflect the revocation and restatement of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs – the legislation from which the majority of the CAP and BCAP rules on misleading advertising derived) by the Unfair Commercial Practices provisions in the Digital Markets, Competition and Consumers Act 2024 (DMCCA).
On that date, the wording of a number of the rules in the Advertising Codes was changed to reflect relevant changes introduced by the DMCCA on 6 April 2025. Given that the complaint that formed the subject of this ruling was received before 7 April 2025, the ASA considered the ad(s) and complaint under the wording of the rules that existed prior to 7 April 2025, and the Ruling (and references to rules within it) should therefore be read in line with this wording, available here – CAP Code and BCAP Code.
Ad description
A webpage on Amazon.co.uk, seen in March 2024, which formed part of the checkout process.
A heading at the top of the page stated, in blue and green, “[name], we’re giving you 30 days of Prime, including Prime Video for £8.99. The price £8.99 had been crossed out in red, and next to that, further text stated “FREE” in green. A sub-heading underneath stated, “Try Prime for free and watch our best shows. You can cancel anytime”.
In the middle of the page, there were three boxes. The first, titled “Prime Video Only” had a grey background, and in the middle of the box, text stated “£5.99/month” (the grey box). At the bottom of the grey box, there was a white button, which stated “Order without Prime. Decline free trial”. The central box, titled “Prime Video with Prime”, was larger in size, and stood out, in a white background with a blue outline. It featured a cartoon of a laptop with a moving fish and a blinking cat, plus text “INCLUDED” in green. At the bottom of the box, there was a yellow button which stated, “Continue with Prime”. Smaller text underneath that button stated, “Pay after 30 days” and “After your 30-day free trial, Prime is just £8.99/month”. A third box featured an image from a film on prime video. Text at the bottom of the page referred to Amazon Prime Terms and Conditions.
Issue
Two complainants, who believed the presentation of the options was unclear, challenged whether the ad was misleading.
Response
Amazon Europe Core Sarl t/a Amazon said that the webpage was active from March 2023 to April 2024. It was only shown to Amazon customers with an existing payment method on their account. This would have occurred when they placed a previous order or, less commonly, if they added a payment method to their account before ordering. The webpage promoted a free 30-day trial of Amazon Prime and that was prominently stated at the top of the webpage. Amazon Prime always included access to Prime Video, which was a well-known benefit of the Prime membership. Consumers could choose to proceed with their purchase, either with or without Prime, by clicking on the yellow or white buttons respectively. Amazon believed that the average consumer visiting that webpage would be reasonably experienced in shopping online, would be familiar with the way in which Amazon presented its options to proceed with a purchase on its site, would have understood the main membership benefits included in Prime (such as Prime Video) and would have understood that Prime (after the free trial) would cost more than a Prime Video-only subscription.
Referring to whether the options on the webpage were clear, Amazon said that when viewed properly within context, the text “Prime Video Only £5.99/month” above the white button was not misleading to the average consumer. They referred to information on the webpage which they believed made it clear to consumers that clicking the white button would enable them to proceed with their purchase and decline the Prime free trial. This, they believed, would not lead the average consumer to think that clicking on the white button would mean they signed up for Prime Video only. First, information about the Prime free trial and Prime Video was communicated clearly and accurately to consumers. Consumers would be aware from text in the heading and sub-headings on the webpage that they were eligible for a 30-day free trial of Prime, which normally cost £8.99 a month, and that Prime (and the free trial) included Prime Video. Consumers would be aware, from the text in the two boxes in the middle of the page, that they could sign up to the Prime free trial by clicking on the “Continue with Prime” button. Information included in those boxes also indicated that a subscription to Prime Video only cost £5.99 a month and that this was presented to highlight the value of a Prime membership compared to the cost of a Prime Video-only subscription. The information on the page would have been understood by the average consumer as a comparison highlighting the broader benefits of the Prime membership, rather than as an opportunity to sign up for Prime Video alone.
Amazon believed that the average consumer would have understood that clicking on the white button would not have led them to signing up to a Prime Video subscription. This was because, for example, unlike the yellow button which stated \"Continue with Prime\" and which featured explanatory wording beneath that indicated the trial would auto-renew at a cost of £8.99 per month, there was no such text or indication anywhere else on the webpage, including in the grey box or under the white button, that clicking the white button would cause the consumers to sign up to Prime Video or any other subscription. It was clear that clicking that white button would not have incurred any costs to the consumers, as indicated by the absence of equivalent wording such as \"Pay now\" or \"Continue with Prime Video\" in and around the white button. They also believed the webpage clearly and prominently communicated to consumers how to subscribe or not to subscribe to the Prime free trial. They referred to their belief that both buttons contained unambiguous language; specifically, “Order without Prime. Decline free trial” and “Continue with Prime”. As such, they said that if the average consumer did not want to purchase or sign up to the Prime free trial, they would have understood to click on the white button.
Amazon said that the two buttons featured text in the same size and were set out side-by-side in the middle of the webpage where it was easy for consumers to read their options left to right. Both buttons were in different colours to the box immediately surrounding them, meaning they both stood out against their respective backgrounds. The white button was set against a grey background and the yellow button was against a white background. The rationale behind the different coloured buttons was to distinguish between the different options contained in each, enabling consumers to recognise that each button provided a discrete option and to choose between them. In addition, the grey box which contained the text “Prime Video Only £5.99/month” was not clickable, which further supported their view that consumers would have understood that clicking the white button below that text would not sign consumers up to a Prime Video subscription.
They stated that the individual components of the webpage, or its overall design or layout, would not have caused consumers to take a transactional decision they would not have otherwise taken. Any consumers who did click on the white button would not have accidentally signed up for anything and would have been able to proceed with their purchase without the Prime free trial, as they would have done had the webpage not been presented to them. They re-iterated that any consumers who clicked on the yellow button knew that they were signing up for a trial of Prime, because the button expressly gave them an option to “Continue with Prime”. And the most likely reason customers selected \"Order without Prime. Decline free trial\" would be because they wanted to finalise their order without joining Prime, having already progressed through the checkout process, not because they intended to sign up for Prime Video.
Amazon said that of the consumers who were served with the webpage in March 2024, only a small minority chose the “Continue with Prime” yellow button option in the central box. They believed that the vast majority selected the “Order without Prime” white button in the left-hand box. They were unable to say (due to lack of statistics) how many did not complete their purchase, but contended that doing so was neither a transactional decision to refrain from purchasing nor causally related to the presentation of the page. The likely reasons for leaving this page without purchasing, such as navigating back to a previous page to return to their shopping basket, finding better prices elsewhere, insufficient funds, or loss of internet connection or battery power, did not involve a transactional decision to refrain from purchasing.
Lastly, Amazon confirmed that the webpage was no longer in use.
Assessment
Upheld
The ASA considered that its starting point was to assess how the notional average consumer, who was reasonably well-informed and reasonably observant and circumspect, would be likely to view the webpage, in context.
We agreed with Amazon that such a consumer would have reasonable experience and knowledge of shopping online and would, we considered, have varying degrees of familiarity with the Amazon site, depending in part on how often they had used it before. They would have been already aware of Amazon, and likely have heard of the Prime service, but would not need to have been reasonably well-informed about the ‘features’ of the Prime service to have had the attributes of the average consumer. Furthermore, we did not consider that the average consumer would necessarily be aware of the way in which Amazon presented its options to proceed with a purchase on its website, especially because we understood that the layout of such pages changed regularly.
We then considered the consumer journey which preceded the ad. We understood that consumers would reach the webpage in question, having added all of their required products to their basket (by clicking on yellow buttons marked “Add to basket”), with the option of selecting “Fast FREE Delivery” with Prime, and clicking the “Proceed to Checkout” button (also in yellow) on the right-hand side of the preceding page. The ad outlining the free trial of Prime then appeared on the next page (checkout), despite the consumer having chosen not to select the offer of free delivery with Prime on an earlier page.
We next assessed the webpage featuring the ad, which the consumer would reach expecting it (in our view, given the button clicked on the preceding page) to be part of the checkout process. There was no additional text or buttons presented within the webpage, aside from the two boxes each featuring a heading and a button, which allowed the consumer to proceed with their journey in order to checkout and purchase their items.
The more prominent central box, which was headed “Prime Video with Prime”, invited the consumer to “Continue” their journey “with Prime” by clicking on the button in that box, which was (like the earlier “add to basket” buttons) in yellow and offered a trial/subscription of Prime for no upfront cost. In our view many consumers landing on the page (and sharing the characteristics of the notional average consumer), particularly those with previous experience of being served with Prime ads similar to this one, would identify from the webpage heading (“we’re giving you 30 days of Prime, including Prime Video …”) that it was an ad for Prime and would either (if they wanted Prime) click the yellow button, or if they wanted to proceed without Prime would turn instead to the left-hand box.
The left-hand box appeared from its heading (“Prime Video Only £5.99/month”) to be for those wanting to subscribe to a Prime Video only subscription at a cost of £5.99 a month. Many consumers, particularly those with previous experience of similar Prime ads, would discount the heading and go on to choose the “Order without Prime” button to complete their purchase. However, others would not discount the heading, and the central box would again in our view appear to many (sharing the characteristics of the notional average consumer) to be the more attractive option, as by selecting that option (even if not originally intended), they would not have to pay an additional cost or fee upfront, which they would not have expected or intended to do in order to complete their purchase.
Some consumers (sharing the characteristics of the notional average consumer), believing that the left-hand box enabled them to sign up to a Prime Video subscription at a cost of £5.99 a month, would wish to subscribe to that service and so would have clicked the button in that box, unaware that it would not provide Prime Video.
Some consumers (sharing the characteristics of the notional average consumer), not wanting either a monthly Prime Video subscription or Prime Video with Prime subscription subject to auto-renewal if not cancelled after 30 days, would have exited the web page and abandoned their purchase altogether.
We noted Amazon’s contention that the ad did not in fact mislead because only a small minority of consumers in the 14 months the web page was active selected the yellow Prime button. However, we had not seen the underlying data, we did not know exactly to whom the ad was served, we did not know how many who had initially selected Prime later sought to cancel, and it was not clear whether the vast majority who did not select the Prime button then selected the non-Prime button (perhaps under the misapprehension it was for Prime Video only) or navigated away from the page altogether. We reminded ourselves that the average consumer test was not intended to be a statistical test, and it was up to the regulator to exercise its judgment to determine the typical reaction of the average consumer in a given case. In our view, the choices offered on the web page were presented in a confusing manner, and were apt to mislead, including by steering at least a significant proportion of consumers (even if not the majority), notwithstanding that they were reasonably well-informed and reasonably observant and circumspect, into making a transactional decision which they would not have made otherwise. This included (particularly for those not used to navigating the presentation of Amazon’s Prime advertisements) by selecting the yellow “Continue with Prime” button as the option which they believed would allow them to continue to complete their selected purchase(s) without any additional costs at the point of purchase; selecting the white “Order without Prime” button as the option which they believed would also access a subscription to “Prime Video only”; or abandoning their purchase altogether, with the loss of the opportunity to purchase the selected products at the advertised price.
Given the above, we concluded that the presentation of options was unclear, and therefore, the ad was misleading.
The ad breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising).
Action
The ad must not appear in the form complained of. We told Amazon Europe Core Sarl t/a Amazon to ensure the presentation of choices relating to signing up to Amazon Prime, or to continue without doing so, was clear.
