A promotion on bottles of Schweppes drinks stated "FREE JUG* WHEN YOU BUY 3 PACKS". Text featured prominently within an image of a jug stated "CLAIM YOUR FREE JUG* & mix in the taste of summer when you buy 3 packs of Schweppes". Further text beneath the image stated "How to Claim: Collect 3 codes from promotional packs only, go to Schweppes.co.uk/freejug and enter your codes. We will then send you a FREE jug". Small print running vertically up the side of the bottle stated "*From 01/06/13 until 22/09/13, additional terms and conditions apply". Smaller text located within a silver box listed terms and conditions for the promotion, including "Postage not included. Contribution of £1.40 required".
Four complainants challenged whether the promotion was misleading, because it did not make sufficiently clear that consumers would have to pay for postage of the jug.
Beverage Services Ltd t/a Schweppes explained that the offer, which had run on various Schweppes drinks packs, allowed consumers to claim a free jug with three codes from promotional packs. In order to claim the jug, consumers had to enter their three promotional codes on the Schweppes website and pay a £1.40 postage charge. They considered that the packaging made clear to consumers that there were restrictions to the offer, including that a postage charge applied, and prompted consumers to visit their website for further information.
Schweppes said the word "FREE" on the front of the pack was qualified by the terms and conditions on the back (in the silver box), which included a reference to the postage cost as well as a link to the fuller terms and conditions on their website. They stated that each reference to the "free" jug was clearly marked with an asterisk linking to qualifying wording on the front of the pack that stated "additional terms and conditions apply". They said the website itself included a clear reference to the postage charge on both the landing page to which consumers were directed by the terms and conditions on the pack and on the page containing the full terms and conditions and FAQs.
Schweppes stated that the existence of postage charges to claim "free" gifts was standard industry practice, and therefore consumers were unlikely to be surprised to find that there was a postage element attached to the offer. They pointed out that, although on that basis they did not consider that the postage charge was a significant condition of the offer, they had nevertheless included a reference to it on the pack. They also believed that the use of the word "claim" in the text "CLAIM YOUR FREE JUG*" would signal to consumers that they would need to follow a process in order to receive the jug, and would encourage them to visit the website for further details.
The ASA noted that the CAP Code allowed for "free" claims to be used where a charge reflecting the unavoidable cost of paying for delivery of an item applied. We understood that the £1.40 charge was reflective of the cost of postage only, and that therefore that charge was not inconsistent with the on-pack references to a "FREE" jug. However, we also noted that the Code stipulated that marketing communications must make clear the extent of the commitment consumers must make in order to take advantage of a "free" offer.
We considered that most consumers would understand that any given promotion was likely to carry terms and conditions, and would expect that the most significant of those, which would include any costs associated with entry, would be communicated in the ad itself - including, as in this case, on the packaging. We noted that there would not be time pressures on consumers picking up the products in a store and considered that, although the information contained in the silver box was given in very small writing, it could nevertheless be a suitable method of communicating significant terms and conditions of the offer if it was clearly signposted to consumers. However, we noted that the text "FREE JUG* WHEN YOU BUY 3 PACKS" on the front of each bottle and "CLAIM YOUR FREE JUG* ... when you buy 3 packs of Schweppes" contained an asterisk which linked to the separate statement "*From 01/06/13 until 22/09/13, additional terms and conditions apply". We considered that that text in fact detracted from the prominence of the information in the silver box, because consumers were likely to understand that no other conditions beyond the promotion's start and end dates were significant enough to warrant inclusion on the pack itself. We concluded that the promotion did not make sufficiently clear that consumers would have to pay postage costs in order to obtain the free jug and was therefore misleading.
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), 3.10 3.10 Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification. (Qualification), 3.23 3.23 Marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a "free" offer. (Free), and 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. (Sales promotions).
The promotion must not appear again in its current form. We told Beverage Services Ltd to ensure that "free" claims were clearly qualified with a reference to the existence and amount of the postage charge where one applied.