A website, www.atlaseditions.co.uk, for replica collectables featured various products on the home page, one of which was of a truck with text that stated “Dinky Trucks £2.99 + FREE post and packing”. Below this was a button with the text “SUBSCRIBE” and below that was the text “+See Dinky Trucks”.
When clicking on the “SUBSCRIBE” button consumers were directed to a page where they had to complete a form, agree to the terms and conditions and click on a button with the text “CONFIRM YOUR RISK-FREE SUBSCRIPTION”. On the right-hand side of that page was text that stated “OUR OFFER, YOUR GUARANTEES No need to send any money now. You will only be charged once you have received each exclusive Dinky Trucks die-cast model. You will receive the latest model from The Dinky Trucks Collection approximately every 4 weeks, unless you inform us. No risks, you are free to cancel your collection at any time without giving an explanation”.
When clicking on “+See Dinky Trucks” consumers were directed to the product page, which featured text at the top right-hand side of the page that stated, “OUR OFFER Obligation-free subscription The Leyland Octopus ‘ESSO’ Tanker model + Certificate of Authenticity + FREE Pin Badge £2. 99 + FREE postage & packing Our no obligation guarantee”. Below that was a short form that consumers needed to complete and then click on the “SUBSCRIBE” button beneath this.
The complainant, who understood that consumers would enrol on a paid-for subscription upon their purchase, challenged whether that information had been made sufficiently clear on the website.
Atlas Editions UK Ltd stated that the “Dinky Toys Leyland Esso Tanker” (tanker) was an exclusive introductory offer to a collection. When consumers visited the website to place their order for the item they were directed to the product page, which stated that the model was part of a collection. Furthermore, the product page showed a selection of other models that were part of the collection along with some gifts that they would also receive.
Atlas Editions UK believed that the product and order pages made clear to consumers that if they ordered the tanker at the introductory price, they would be placed on a priority delivery service to receive other models approximately every four weeks, unless they contacted Atlas Editions UK to cancel or return any models, which they could do at any time.
Atlas Editions UK believed that consumers understood from the outset to when they placed their order that they would be subject to a subscription based collection of items when ordering the tanker at the introductory price. They would receive a new item every four weeks unless they contacted Atlas Editions UK to cancel or return any models. This was because all the buttons which consumers had to click on throughout the website (i.e. home page, product page and order page) to place an order, all included the text “subscribe”, the definition of which was “to arrange to receive something, typically a product or a publication, regularly by paying in advance”.
If consumers decided that they only wanted to keep the tanker that they had initially ordered, then they needed to inform Atlas Editions UK and consequently, their subscription would be cancelled.
Atlas Edition UK further stated that upon receiving their first purchased product, consumers would be given a flyer stating that the item was part of a collection and detailed the full offer/pricing details of future models.
The ASA understood that if consumers purchased the tanker they would automatically enrol onto a paid-for subscription service, where every month they would receive another model from the Dinky Trucks Collection and was then that payment would be due.
We considered that this was material information likely to influence a consumer’s transactional decision to pursue their interest in purchasing the item and needed to be made sufficiently clear from the outset (i.e. on the home page) before they proceeded any further with their consumer journey. We noted that the home page where the tanker first appeared was shown with a button that included the text “SUBSCRIBE” and when clicked on, directed consumers to the order page. However, we considered that the text alone did not make sufficiently clear that consumers would be entering a paid-for subscription service upon their first purchase in exchange for a new tanker that they would receive every month.
Because of that, we considered the ad did not make sufficiently clear the condition that consumers purchasing a product from the website would enrol on a paid-for subscription contract and concluded was likely to mislead consumers.
The ad breached CAP Code (Edition 12) rules
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) and 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification).
The ad must not appear again in its current form. We told Atlas Editions UK Ltd to ensure that their advertising made sufficiently clear the condition that consumers purchasing a product from their website would be enrolling on a paid-for subscription contract