Background
Summary of Council decision:
Four issues were investigated all of which were Upheld.
Ad description
An advertorial for Dead Sea Kit, a product that purported to remove wrinkles, featured text which stated "Kate, a mum of three from UK [sic], is the perfect example of a smart consumer using the web to get quality products for a low cost ... Kate decided to change her life, and recently discovered a clever way of combining two free beauty product trials from trusted companies DermaJuvenate and Dead Sea Kit to unlock the secrets of anti-aging. Her results are comparable to what you might attain at Medi-Spas and Doctor's offices for £1,500 or more, all the while using nothing but free trial offers”.
The ad also included two different sets of “before” and “after” images of female faces. Text beneath the same photographs stated "The second picture is taken exactly 15 days after the first. Notice the strong difference after applying the 2 trials during that time". Text beneath the second set of photographs stated "Kate started to notice several changes within weeks. The picture on the right was taken around the third week after she started using DermaJuvenate and Dead Sea Kit regularly. She used both DermaJuvenate and Dead Sea Kit only once a day in the morning".
Further text stated "Follow the links to the free trials provided by the manufacturers of DermaJuvenate and Dead Sea Kit and know that you are getting quality products that work; no strings attached! Remember, to get the BEST results you will want to try BOTH products together. With the discounted shipping costs you'll be on your way to smooth skin for under £6! But hurry! These free trial products won't be available forever ... Trial Offer Ends: Thursday 8 November 2012 STEP 1: Click here for a FREE TRIAL of DermaJuvenate Use special discount link to get shipping reduced to £4.99 from £6.95 STEP 2: Click here for a FREE TRIAL of Dead Sea Kit Use coupon code "XXXXXXXXXXXX" to get shipping reduced to £3.95".
Issue
The complainant challenged whether:
1. the efficacy claims for the product were misleading and could be substantiated;
2. the testimonials were genuine;
3. the “before” and “after” photographs were genuine; and
4. the ad was misleading, because it failed to make clear the costs that consumers who requested a product sample would incur.
Response
DS Marketing said the ads had not been created by themselves; rather they had been created by their affiliates. However, they did not provide us with the contact details for those affiliates.
Assessment
1. Upheld
In the absence of evidence to support the efficacy claims for the advertised product, the ASA considered the claims had not been substantiated and therefore concluded that the ad breached the Code.
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) and 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).
2. & 3. Upheld
In the absence of evidence to demonstrate that the testimonials and “before” and “after” photographs were genuine, we concluded that the ad breached the Code.
On these points, 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 3.45 3.45 Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it. (Endorsements and Testimonials).
4. Upheld
We noted the ad included text that stated "Click here for a FREE TRIAL of Dead Sea Kit". In that context, we considered consumers would understand that, upon request, they were able to receive a free trial of the product at no cost. We were therefore concerned that the complainant had been charged for the following month's supply of the product, after having requested only the free trial.
Because the ad did not make clear that, upon requesting a free trial of the advertised product, consumers would be charged for the following month's supply of that product, we concluded that the ad was misleading and breached the Code.
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) 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).
Action
The ad must not appear again in its current form. We told Dead Sea Kit to ensure all claims were capable of robust substantiation in future and to ensure future ads made clear all significant conditions of a promotion. We also told them to ensure that all testimonials and “before” and “after” photographs were genuine.
