A radio ad, an e-mail and the website www.bmw.co.uk, heard and seen in November 2012, promoted a BMW offer for up to five years' free servicing or an additional year's warranty on used cars.
a. The radio ad stated "Enjoy longer-lasting benefits at the BMW Approved Used Car Event. Get up to five years' or sixty thousand miles' complimentary servicing, or an extra year's warranty. Plus the reassurance of knowing your car meets the meticulous BMW Approved Used Car standards. One thing that won't last longer is the event itself. A five-day BMW Approved Used Car Event, from the eleventh to the fifteenth of October, with prices starting at less than seven thousand pounds. Terms and conditions apply. Visit bmw.co.uk."
b.. The e-mail carried the subject line "BMW Approved Used Car Event" and included text which stated "For just five days, between 11-15 October, you'll receive a choice of complimentary benefits^ when you buy a BMW Approved Used Car at Fairfield BMW. You can opt for a 2 year warranty for an added 12 months' peace of mind or up to 5 years'/60,000 miles servicing*". A footnote below stated "^Choose from a 24 month warranty or up to five years free servicing on any BMW Approved Used Car purchased between 11-15 October 2012. *5 years or up to 60,000 miles Service Inclusive (from date of first registration) is applicable if a vehicle has not had its first service. Alternatively two years or up to a maximum of 120,000 miles Service Inclusive is applicable if it has had its first service, is under five years old and has covered less than 70,000 miles. Free Service Inclusive is applicable to 4-cylinder and 6-cylinder cars only. Full Service Inclusive terms and conditions apply, for full details visit www.bmw.co.uk/serviceinclusive".
c. The website www.bmw.co.uk contained the headline "JUST 5 DAYS TO GET BENEFITS THAT LAST UP TO 5 YEARS" and stated "THE BMW APPROVED USED CAR EVENT. 18-22 October 2012. GET AN EXTRA YEAR'S WARRANTY OR UP TO FIVE YEARS' FREE SERVICING*". Similar footnotes as in ad (b) were shown below.
The complainant, who had paid a deposit for a vehicle in the promotion and had been told that the offer did not apply because the car was still covered by the manufacturer's three-year warranty, challenged whether ads (a), (b) and (c) were misleading because they did not make that condition clear.
BMW (UK) Ltd (BMW) explained that all BMW Approved Used Cars were offered with a 12-month warranty, and that for the duration of the Approved Used Car Event ("the promotion") they were offered to customers with the choice of an additional 12 months' warranty or a Service Inclusive package, which consisted of up to 5 years'/60,000 miles free servicing.
After looking into the complaint, BMW confirmed that the complainant had attempted to buy a car which had only been registered in June 2012. As such, they explained that it would already have benefited from the manufacturer's 3-year warranty for new cars. Further, the vehicle in question also had an existing Service Inclusive package outside of the promotion. BMW therefore argued that the customer buying the car would have obtained both of the benefits offered as part of the promotion and did not consider that their advertising was misleading.
BMW set out the circumstances under which vehicles in the promotion might already have one or other of the advertised benefits. They stated that younger car stock would be covered by the manufacturer's three-year warranty, and that some cars could already have a Service Inclusive package dating from their first purchase (because such packages remained with the vehicle rather than the owner). They estimated that, at the time of the promotion, 53% of all BMW Approved Used Car stock would have qualified for either the extended warranty or the Service Inclusive package, whilst 42% would have already benefited from the existing manufacturer's new car warranty, valid for at least 24 months from the date of the vehicle's first registration, and would therefore have been eligible only for the Service Inclusive package under the promotion. They said the remaining 5% of stock would have had both a Service Inclusive package and an ongoing manufacturer warranty (with a minimum of 24 months remaining), and would therefore have held both of the advertised benefits inside and outside of the promotion. They stressed that 95% of all available stock would have been eligible for one of the benefits advertised.
In relation to ad (a), the Radio Advertising Clearance Centre (RACC) said they felt that, as the complainant was able to obtain both of the benefits advertised, the ad was not capable of materially misleading.
The ASA understood that the complainant had not been able to obtain either of the advertised benefits under the promotion because the car they were attempting to purchase already had both a manufacturer's warranty of over 24 months and a Service Inclusive package. We noted BMW's estimate that that was the situation for around 5% of all Approved Used Car stock at the time. We also noted that a further 42% of vehicles in the promotion would have had an existing manufacturer's warranty and would therefore only have been eligible to receive the Service Inclusive package in the promotion.
Although we acknowledged that the car the complainant had attempted to buy already had both of the benefits, we considered that the ads gave the impression that the choice between those benefits was an additional feature available to all customers on any car during the promotional period. Because the promotion did not offer any benefit to around 5% of car stock at the time, and because there was no element of choice for a further 42% of vehicles, we concluded that the ads omitted material information regarding the advertised promotion and were therefore misleading.
Ad (a) breached BCAP Code rules
Advertisements must not materially mislead or be likely to do so.
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means. (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).
Ads (b) and (c) breached CAP Code (Edition 12) rules
Advertisements 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), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification), 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Exaggeration) and 8.17 8.17 All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include: (Significant conditions for promotions).
The ads must not appear or be broadcast again in their current form. We told BMW (UK) Ltd to ensure that their ads communicated all material information regarding their promotions.