Summary of Council decision:
Two issues were investigated, both of which were Upheld.
The ASA has received large numbers of complaints from consumers about websites that offer access to online government services but which are not the official channels, and often charge a premium for their services. In July 2014, the ASA published on its website the findings of research, conducted on the ASA’s behalf by Ipsos MORI, into the public's experience of 'copycat' websites. This formed part of the ASA’s on-going commitment to protecting consumers from misleading advertising and built on the work carried out to date, alongside government, trading standards and search engines, to address concerns about these sites.
Following the publication of the research the ASA made the decision to conduct several investigations to establish a clear position on how copycat websites should present their services to avoid misleading consumers.
A website for the European Health Card, www.europeanhealthcard.org.uk:
a. The home page was headed "EUROPEAN HEALTH INSURANCE CARD (EHIC)" and text underneath stated "THE REPLACEMENT SERVICE FOR THE OLD E111 FORM". An example card was pictured and text next to it stated "The E111 form substituted with the new European Health Insurance Card (EHIC). E111, no longer valid post January 2006. The old E111 paper form has been substituted with the new European Health Insurance Card (EHIC) ... We offer complete verification of the application form and forwarding service to ascertain that the whole process is error-free and swift thereby saving any preventable delays or hold-ups. Our proficient team will make sure that your application is carefully and thoroughly reviewed for mistakes and lacunae".
The web page included a web form headed "Quick Sign-up form" and text underneath stated "Your EHIC card will be valid for 5 years. Your information is 100% secure using the website. A processing fee is now required per application." The form included personal details such as name, National Insurance number and address. Users had to select from two "Membership Type" options: "Standard Application £23.50 Standard applications are processed within 3 business days and you can usually expect to receive your card ten working days after this. Temporary cover is not provided should you select this option" or "Fast Track Application £24.99 If you are traveling [sic] abroad shortly, we recommend our Fast Track Service. Your application will be processed within 1 day and we will be able to provide advice on temporary cover and arrangements to claim using the scheme should you travel before your card arrives".
Text at the bottom of the web page included "2. Tele-Application You can also apply directly to the NHS application line on: 0845 606 2030. There is no application charge barring the regular call charge but the application cannot be checked or reviewed prior to submission as no review service would have been availed", "3. Application through the NHS website An unevaluated online application can be made directly to the NHS website free of corroboration cost. We are not affiliated with the NHS or any other government body. Visit here to apply via the NHS". And, "3. Application for a Card In case your card has been stolen or lost, you will need to apply for a replacement card. You can apply directly to the NHS for a replacement card or alternatively, you can apply with us using our verification and forwarding service for a service charge of £23.50. We will ensure accuracy of the application and forward it to the NHS for you".
b. Submitting an application via ad (a) linked to a payment page which stated "A processing fee is now required per application" and listed the cost of application for a "Standard Application" as 23.50. Consumers were invited to submit their card details and address and click "Pay".
The complainant challenged whether:
1. the website misleadingly implied that it was the official website for the European Health Insurance Card (EHIC); and
2. the website was misleading, because it did not make clear that the EHIC was available for free from the NHS and that the advertiser levied an additional charge.
1. & 2. Europe EHIC Services Ltd t/a European Health Card said the EHIC was free, regardless of whether consumers applied via their website or via the NHS. They did not charge for the EHIC and were not responsible for its delivery. They said the application verification service they provided was nothing to do with the EHIC itself, but rather the application processing and checking of the application on their website. The charge they levied was for the processing of the application, which was stated clearly on the site along with information that one could apply free of charge at the NHS. Because they had nothing to do with the production or delivery of the EHIC they therefore did not believe there was any reason for them to include a disclaimer stating that the EHIC was free. They believed that would deviate from the relevant information, which was that the charge they levied was for the application verification service and not the EHIC. They believed that by including any such disclaimers they might mislead consumers into thinking that they charged for the EHIC itself. They believed this may unintentionally put consumers off using their service. They said they took steps to ensure consumers were not misled, including not using the word 'official', not using 'NHS', 'govdirect' or 'gov' in their domain name and not using crown-like logos.
In relation to ad (b) they said the payment page could only be accessed by users via the home page and application form. It included multiple disclaimers regarding the service they provided, and information that you could apply for free via the NHS. Consumers also had to accept their terms and conditions, which also included the same information. They therefore believed that consumers were suitably well informed of their choices.
1. & 2. Upheld
The ASA understood that the www.europeanhealthcard.org.uk website enabled users to apply for an EHIC, but it was not the official government channel for that service. The www.europeanhealthcard.org.uk website charged for their application verification service, and the EHIC was available for free when applied for via the official www.gov.uk website. We considered that consumers were likely to infer that a website providing application services for a government issued document, such as an EHIC card, was official, unless it made clear that was not the case.
The website design was simple and did not include images or additional graphics apart from a large picture of the EHIC. We considered those design features were likely to contribute to consumers' trust and understanding that they were using an official site. In the absence of a clear disclaimer the picture of the EHIC was also likely to contribute to the overall impression that the website was the official channel to obtain it.
We considered that many consumers would not be aware that the EHIC could be obtained for free from the NHS. It was therefore important that the European EHIC Services website made clear that they charged a premium for their commercial application verification service, and that the EHIC could be obtained for free from the NHS.
The website included information in the text as part of the terms and conditions at the bottom of the page that the card was also available direct from the NHS and that there was no application cost to do so. However, the disclaimers did not provide the relevant www.gov.uk website address or provide a link to it, and we considered that the wording was unclear. We considered that the disclaimer contradicted the overall impression of the web page, which implied that the website was the official service.
We considered that the application process to obtain the EHIC would be the main focus of consumers' attention and that the location of the disclaimers and fact they appeared as part of the terms and conditions meant that many consumers would not read them before proceeding with the application process. The statement "A processing fee is now required per application" in ad (b) also misleadingly implied that payment was now required for the EHIC.
We considered that to ensure consumers were fully aware of the nature of the service being offered, a prominent disclaimer should have been presented immediately alongside calls to action such as "Renew an expired Health Card" and "Replace Lost/Stolen Card" and the most prominent price statements on each page. Because the home page consisted of the application form and this was likely to be the main focus of consumers' attention we also considered this information should be presented by the "Next" button so that consumers would see it before taking steps to progress their application. Such a disclaimer should be clearly worded and presented separately from other information to ensure it was prominent and would be read by consumers. It should contain sufficient additional information to allow consumers to understand the non-official nature of the service on offer and the additional cost of using that service compared to using the official service directly. As best practice, it should do the following: state that the EHIC is available for free from the NHS, provide a link to the www.gov.uk website, state that European EHIC Services charge an additional amount for their application verification service and specify that amount (or a "from" price if the amount varied). Further clarity could be obtained by repeating this information on the final page of the online application process before consumers completed the transaction.
Because the overall impression of the website implied it was the official channel for EHIC applications, and the disclaimers contradicted that overall impression, we concluded the website was misleading. We also concluded that it did not make clear that the EHIC was available for free from the NHS and that the advertiser levied an additional charge and was therefore misleading on that basis.
The ads 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 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 website must not appear again in its current form. We told European EHIC Services Ltd to ensure they did not present their service and the application process in a way which was likely to mislead consumers into thinking it was the official service, and not to present disclaimers in a way which contradicted the overall impression of the website.
We also told them to include a prominent disclaimer alongside calls to action such as "Renew an expired Health Card" and "Replace Lost/Stolen Card" and the most prominent price statements on each page. The disclaimer should be clearly worded and presented separately from other information to ensure it was prominent and would be read by consumers.
It should contain sufficient additional information to allow consumers to understand the non-official nature of the service on offer and the additional cost of using that service compared to using the official service directly. As best practice it should do the following: state that the EHIC is available for free from the NHS, provide a link to the www.gov.uk website, state that European EHIC Services Ltd charge an additional amount for their application verification service and specify that amount (or a "from" price if the amount varied). For additional clarity, this information would be repeated on the final page of the online application process before consumers complete the transaction.