A TV ad for American Express, seen in April 2017, featured animations of different situations that could result in unexpected spending, such as a plumbing leak and dropping a mobile phone in water. A voice-over stated, “Sometimes we have to pay for things we don’t actually like. But there is an upside to everything. There is a card that could give you 5% cashback on all purchases. Even the ones that didn’t go to plan. So switch now to the American Express Platinum Cashback Everyday Credit Card. Search Amex Cashback.” On-screen small print stated “Minimum annual spend for cashback eligibility is £3,000. 5% cashback in your first three months of Card membership. Maximum £100. Up to 1% cashback thereafter”.
Two complainants challenged whether the claim “There is a card that could give you 5% cashback on all purchases” was misleading and exaggerated the cashback offer.
American Express Services Europe Ltd said that customers who applied and were approved would receive 5% cashback on all of their purchases made using the card for the first three months of card membership. After that period they would receive up to 1% cashback. There were no exclusions in relation to different types of purchases made when a customer would not earn cashback, either at the introductory rate or after the three-month period ended.
American Express said that the ad should be viewed from the perspective of the average consumer. They did not consider that consumers would understand the claim “There is a card that could give you 5% cashback on all purchases” as an absolute claim. The voice-over stated, “There is a card that could (emphasis added) give you 5% cashback on all purchases”. It was designed to work in combination with the explanatory information that appeared at the bottom of the screen at the same time as the claim was made in the voice-over. Text stating “Terms, exclusions and limitations apply” appeared in bold alongside the APR and further text stating “5% cashback in your first 3 months of membership”, and they believed the viewer’s eye would be drawn to this information. The qualification at the bottom of the screen also explained the minimum spend requirement, the limit to the amount of cashback that could be earned, and what customers could not earn cashback on. American Express considered that this information was sufficiently prominent and clarified the headline claim, but did not contradict it. They did not believe that the ad was misleading or that it exaggerated the cashback offer. They said that it was common industry practice for cashback offers to contain those types of clarifications.
Clearcast said that they had reviewed the ad at script stage and asked American Express to change the claim to state “could”. They had also asked them to amend the voice-over to make clear that the offer was only available to new customers. Clearcast considered that the combination of the voice-over, and the bold text and fundamental terms, exclusions and limitations set out in the on-screen text made it clear that “5% cashback on all purchases” was not an absolute claim.
The ASA noted that the voice-over stated, “There is a card that could give you 5% cashback on all purchases”. We considered that consumers would understand this to mean that they would be able to get 5% cashback on all purchases when using the card. We noted that the 5% cashback offer was only available for the first three months of membership. Furthermore, the amount of cashback that could be earned was limited to £100, and customers would only be eligible to receive it if they spent a minimum of £3,000 in the card membership year. These were significant limitations, and consumers would need to consider them in combination in order to make a decision to apply for the card. We noted that text explaining the limitations appeared on-screen when the headline claim was spoken in the voice-over. However, the font was small and the text describing the significant conditions was situated within a larger block. We considered that the qualification was not sufficient to override the impression given by the headline claim that customers would be able to get 5% cashback on all purchases without limitations. We therefore concluded that the ad was misleading.
The ad breached BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification) and 3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service. (Exaggeration).
The ad must not appear again in its current form. We told American Express to make significant conditions to offers in their ads clear and to ensure they did not contradict the claims they qualified.