Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A pop up ad with the url "lifestyle-reports.com/surveyuka.php" appeared in a new tab, when browsing the Sainsbury's website. It included the banner heading "Visitors' Survey: Sainsburys.co.uk" and a small logo stated "LIFE style REPORTS". Text stated "Dear Sainsburys.co.uk visitor, You've been selected to take part in this anonymous survey. Tell us what you think of Sainsburys.co.uk in this 30 second questionnaire, and to say "thank you", we'll offer you a few exclusive offers ... Question 1 of 3: Where are you viewing this website from right now?" Three options were given "At home; At work; Other". Two more survey questions followed. Text below stated "We are not affiliated nor partnered, with Sainsburys.co.uk. Sainsburys.co.uk has not authored, participated in, or in any way reviewed this advertisement or authorized it. See important terms and conditions".
After completing the three survey questions, customers were directed to a new page on the lifestyle-reports.com website, featuring the same banner heading, which featured the "Dead Sea Beauty Kit Wrinkle Reducer" and "Collegenta Active Collagen Serum". The heading stated "We have the following exclusive offers available to give you for your participation. You may choose only (1) products from the list below. Thank you for participating in our survey!". Text below again stated "We are not affiliated nor partnered, with Sainsburys.co.uk. Sainsburys.co.uk has not authored, participated in, or in any way reviewed this advertisement or authorized it. See important terms and conditions".
Respondents were then directed to the website www.deadseakit.com.
Issue
The complainant challenged whether:
1. the ad was obviously recognisable as a marketing communication; and
2. the use of the Sainsbury's name misleadingly implied the promotion was associated with that retailer.
Response
1. & 2. DS Marketing said the website was neither hosted nor created by them; rather, it was run by an affiliate who received commissions for referred customers to their own website www.deadseakit.com. They stated that they were in no way associated with the website and the promotional methods the affiliate was using, nor did DS Marketing own, host or have any control over the Sainsbury's website or any other domain names the affiliate might be using.
They said they were unable to identify the affiliate in this case as they required a referral script to establish the affiliate's identity. They added that they had no knowledge regarding the third party involved in the advertising. They considered that, because the ad appeared when the customer clicked on a link on the Sainsbury's website, which then led the customer to the affiliate's website, which in turn linked to DS Marketing's website, it was therefore safe to assume that that retailer had full knowledge of the ad and, because it had control over the links that appeared in its website, it was most likely profiting from selling the links to the affiliate in question. They did not consider that they could be held responsible for third parties blind-linking to their website and profiting from it.
Assessment
The ASA noted that the ad stated "We are not affiliated nor partnered, with Sainsburys.co.uk. Sainsburys.co.uk has not authored, participated in, or in any way reviewed this advertisement or authorized it". We contacted Sainsbury's who said that they would not have authorised the ad. They stated that their IT team considered it likely that the computer on which the complainant had viewed the ad had been infected with malware that was intercepting the traffic between that computer and the internet and was therefore displaying the ad.
We considered that Sainsbury's were not responsible for the ad.
We noted that DS Marketing was the company whose products were being advertised and that it was their website that consumers were directed to, following the completion of the survey. Although we acknowledged that they maintained the ad had been produced by an affiliate, we nonetheless considered that, as the beneficiaries of the marketing material, they were responsible for the ad and for responding to the ASA investigation.
1. Upheld
We noted that the first pages of the ad set out a questionnaire addressed to visitors of the Sainsbury's website, which set out questions about that website and therefore considered that consumers would initially understand that the pop-up ad was a survey for Sainsbury's. Although we noted that the small print referred to "this advertisement" and subsequently led to another company's website, we considered that the overall presentation of the web pages implied that consumers were viewing and completing a Sainsbury's survey. We therefore concluded that the ad was not obviously recognisable as a marketing communication and was therefore misleading.
On that point, the ad breached CAP Code (Edition 12) rules
2.1
2.1
Marketing communications must be obviously identifiable as such.
(Recognition of marketing communications),
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.5
3.5
Marketing communications must not materially mislead by omitting the identity of the marketer.
Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections.
Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice.
(Misleading advertising).
2. Upheld
We noted that the survey was headed "Sainsburys.co.uk", was addressed to visitors of the Sainsbury's website and set out questions about the Sainsbury's website. Although we noted that small text in the ad stated "We are not affiliated nor partnered, with Sainsburys.co.uk. Sainsburys.co.uk has not authored, participated in, or in any way reviewed this advertisement or authorized it", we considered that consumers would infer from the overall impression of the ad that it was associated with Sainsbury's, particularly as it appeared following a store search on the Sainsbury's website and included questions about the supermarket. We therefore considered that small text contradicted the overall impression of the ad and because we understood that the ad was not associated with Sainsbury's, who furthermore were not aware of the ad, we concluded that it was misleading.
On that point, the ad breached CAP Code (Edition 12) rules
2.1
2.1
Marketing communications must be obviously identifiable as such.
(Recognition of marketing communications),
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.5
3.5
Marketing communications must not materially mislead by omitting the identity of the marketer.
Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections.
Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice.
(Misleading advertising).
Action
The ad must not appear again in its current form. We told the advertisers to ensure that their affiliates produced ads which were clearly identifiable as marketing communications, and did not appear to be linked to other companies, when that was not the case.
