Summary of Council decision:
Three issues were investigated, all of which were Upheld.
An ad for Colgate on the front of the Evening Standard on 8 July stated "THE COLGATE BIG ELECTRIC BRUSH SWAP* … FREE COLGATE PROCLINICAL A1500 - WORTH £169.99" and "Swap your electric toothbrush at Waterloo station tomorrow … Bring your brush to the Colgate stand and swap it for a free Colgate ProClinical A1500 - worth £169.99". Small print at the bottom of the ad stated "Toothbrushes must be electric and rechargeable to qualify. Stocks are limited to 750 per day. One brush per person. For full terms and conditions visit colgateproclinical.co.uk/terms".
The complainant challenged whether:
1. the promotion breached the Code, because they attended the stand but were unable to take up the offer;
2. the ad breached the Code because it did not state the opening times for the stand; and
3. the claim "worth £169.99" was misleading and could be substantiated, because they believed the toothbrushes were usually sold at a lower price.
1. Colgate-Palmolive (UK) Ltd (Colgate) said that they did in fact have a sufficient number of brushes to swap on the day, that they had made a reasonable estimate of demand and that the ad clearly stated the number of brushes that were available. They said that as per the ad they had 750 brushes available to swap on the day and that the complainant was not correct that the stand had run out. They said the stand opened at approximately 6.55 am and that at approximately 7.45 am Network Rail staff instructed them to shut the stand down on health and safety grounds due to the large number of people on the station concourse, and that this was announced to those in the queue. They said that before the stand was closed, approximately 125 brushes had been swapped and that they estimated the remaining 625 brushes would have been sufficient for at least the majority of those in the queue. The stand had been due to close at approximately 7 pm, or earlier if the stock had run out.
Colgate said they had estimated demand at 600 brushes per day, but that they had total stock of 750 to cover any additional demand. They said they had based this estimate on a similar 'Brush Swap' promotion run at selected UK gyms during June 2013. They said the average demand had been for 475 brushes per day. They said these promotions ran at 60 different sites and were targeted at gym users and heavily promoted inside the gyms themselves. They said they promoted them via TV inside gyms, gym social media, posters and leaflets and prominently placed promotional stands in the gyms themselves. They said they had also taken advice on the likely demand from the agencies advising them on the Waterloo brush swap, which they said took into account the daily footfall at the station, and they relied on this information when preparing their estimate. They said they would be more rigorous in challenging agency estimates when running future promotions. They said the ad stated the number of brushes available, and that this information was also included in the terms and conditions on their website. They said the 750 limit was also stated in a video shown on the electronic billboards above the Waterloo station concourse on 4, 5, 8 and 9 July. They said the video was shown every six minutes, after 4 pm on 4 and 5 July and at all material times on 8 and 9 July.
They said the promotion had also been run at Waterloo station the day before on Monday 8 July and that promotion had been publicised as starting on that date by a range of online media websites. They said it ran from 7.15 am to 6.45 pm and 950 brushes were swapped.
They said that once the stand was closed they took all reasonable steps to deal honourably and fairly with consumers and avoid unnecessary disappointment. They said they communicated with consumers via Facebook and Twitter to explain that the Waterloo Brush Swap had been cancelled and that they were running a replacement promotion in which a further 7,000 brushes would be made available as part of an online prize draw. They said they also published a large ad in the Evening Standard on 10 July apologising to consumers for the cancellation of the Waterloo Brush Swap and referring them to the replacement promotion, which was also promoted on their website and by press release. They said the replacement promotion ran online because Network Rail would not allow them to run further promotions at their rail stations and they were unable to find a suitable replacement venue. They therefore considered the fairest solution was to run the promotion online, and pointed out this also allowed them to increase the total number of toothbrushes available.
2. Colgate said they did not believe the ad needed to state the opening times. They said readers who saw the ad in the Evening Standard were likely to be commuters and that the stand opened at approximately 6.55 am, at the start of peak commuting time, so this was the time most relevant to them. They understood the 7 am starting time was reported in the press. They said the stand was due to shut at 7 pm at the latest, or when the stock ran out if that was at an earlier time.
3. Colgate said the RRP for the product had at all times been £169.99, but that it was open to retailers to set their own sale price for the product. They said the brush was sold exclusively through one retailer, where it had been on sale for £169.99. They supplied price tracking data from the product launch date in September 2012 up to July 2013. They believed the claim would be understood by consumers as a reference to RRP and said they were not allowed to force retailers to sell products at their RRPs.
The CAP Code required promoters to be able to demonstrate they had made a reasonable estimate of the likely response to a promotion, and that they were capable of meeting that demand. Colgate had based their estimate on similar promotions run in gyms and on advice from their agency. However, we considered that there was likely to be a much greater response to a promotion in a busy train station where people are constantly passing through, than to a promotion in a gym, to which people would specifically have to travel to and which was not promoted to the general public. We understood that the same promotion had also run at Waterloo station on 8 July and that 950 brushes had been swapped, which was higher than the number of brushes available on 9 July, despite the promotion not having been advertised in newspapers. We considered that placing an ad on the front of the Evening Standard was likely to have increased the response significantly and that Colgate had not taken this into account sufficiently when estimating demand. We understood that 125 brushes had been swapped in less than an hour and that there were a large number of people queuing at the time the stand was closed. Given that the stand was intended to be open until 7pm we considered this demonstrated the estimated demand was not reasonable and that Colgate were not capable of meeting the likely response. We noted that small print in the ad stated 750 brushes were available, but considered that they were still required to make a reasonable estimate of the likely response and be capable of meeting it. We noted Colgate had run a replacement promotion, but that it was run as a prize draw and therefore those who had tried to participate in the original promotion were not guaranteed to be able to obtain a brush. We concluded that Colgate had not made a reasonable estimate of the likely response and that they had caused unnecessary disappointment to participants.
On this point the ad breached CAP Code (Edition 12) rules 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. and 8.9 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. (Sales promotions).
Whilst we understood that the advertising of the promotion had been aimed at commuters we considered that the opening and closing time of the stand was significant material information that should have been included in the ad to enable consumers to make a decision regarding whether they wished to participate. We also noted they were not included in the full Terms and Conditions. We therefore concluded the ad breached the Code.
On this point 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), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification) and 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales promotions).
The ad stated the brush was "worth £169.99". We considered that consumers would expect this to reflect the price at which the product was generally sold. The brush was sold by one retailer only and the breakdown of prices provided by Colgate covered a period of 44 weeks from September 2012 to 10 July 2013. The price data showed that the brush had been sold at the RRP of £169.99 for 12 weeks, and that in the other 32 weeks it had been sold for £84.99 or less. In the period March to July 2013 the brush had only been sold at £169.99 for one week. We considered the evidence demonstrated the product was not generally sold at its RRP price and therefore concluded the claim "worth £169.99" was misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. (Prices).
The ad must not appear again in its current form. We told Colgate to ensure that they made a reasonable estimate of the likely response when running future promotions, and to ensure that price claims were not misleading.