An ad, displayed on Facebook, stated "Sample / Free USB (50GB) TODAY ONLY- Free sample items from top brands. Enter your email to get them now (13 left)" and featured an image of a USB stick. Clicking on the ad took consumers to a sign-up page on www.ziinga.com.
The complainant, who signed up to Ziinga through a similar ad only to be informed that the promotion did not exist, challenged whether the ad was misleading.
Ziinga said they had not approved the ad, which had been created and placed by an affiliate company, and said the ad did not comply with their terms and conditions. Ziinga explained that the URL of the landing page on the Ziinga website showed that the affiliate was part of the NDemand Affiliates Inc. (NDemand) affiliate network, but they were unable to identify which affiliate company had placed the ad. NDemand would be able to identify the specific company that was responsible.
NDemand did not respond to the ASA's enquiries.
The ASA noted that CAP Code rule 1.8 stated that primary responsibility for observing the Code fell on marketers, and that others involved in preparing or publishing marketing communications, such as agencies, publishers and other service suppliers, also accepted an obligation to abide by the Code. We noted Ziinga's explanation that the ad had been created by an affiliate, but we considered that, because the ad linked through to Ziinga's website and Ziinga therefore benefited every time a consumer signed up as a result of clicking on the ad, Ziinga had primary responsibility for ensuring the ad complied with the Code. Nonetheless, we were concerned by NDemand's lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded NDemand of their responsibility to respond promptly to our enquiries and we told them to do so in future.
We considered consumers would understand from the ad that, if they followed the link and signed up to Ziinga, they would receive a free USB stick and/or other free items from top brands. Because we understood that was not the case, we concluded the ad was misleading.
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).
The ad must not appear again in its current form. We told Ziinga to ensure that ads for their website were not misleading to consumers. We referred NDemand to CAP's Compliance team.