A national press ad by ICTV Brands UK Ltd for the No! No! Pro, a hair removal device, seen on 19 August 2017, showed photographs of the device and contained a website address and telephone number for consumers to place orders. Text stated "NOW AVAILABLE AT OUR LOWEST EVER PRICE - plus PHONE & WEB orders receive 3 FREE GIFTS WORTH £76 PLUS FREE UK DELIVERY* WORTH £5.95" and "A TOTAL OF £76 - YOURS FREE! - FREE NEW BEAUTY TIP Worth £49 - FREE NO!NO! SMOOTH CREAM Worth £15 - FREE DELUXE TRAVEL CASE Worth £12 - PLUS FREE UK DELIVERY Worth £5.95 WHEN PAYING IN FULL".
The complainant, who took the ad to mean that the total price for the device and the gifts was £76, but who found on attempting to place her order that the total price was considerably more, challenged whether the pricing information given in the ad was sufficiently clear.
ICTV Brands UK Ltd said the price of the No! No! Pro was £199. They believed it was made clear from information given at two points in the ad that the £76 figure referred to the price of the gifts which, as part of a promotion, were included in the price of the No! No! Pro and that, by responding to the ad, a customer was committing themselves to a 60-day trial of the product prior to any purchase. They said that when a customer telephoned or went online in response to the ad, they were told the price of the No! No! Pro and the arrangements for payment (in full or in three instalments).
The ASA noted that the CAP Code (Edition 12) stated that ads "... must make clear the extent of the commitment the consumer must make to take advantage of a 'free' offer" (rule 3.23 3.23 Marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a "free" offer. .
We noted that two fairly prominent boxes of text stated "CALL OR CLICK ONLINE NOW FOR YOUR 60-DAY RISK-FREE TRIAL - NOW AVAILABLE AT OUR LOWEST EVER PRICE! - plus PHONE & WEB orders receive 3 FREE GIFTS WORTH £76 ..." and "A TOTAL OF £76 - YOURS FREE! FREE NEW BEAUTY TIP Worth £49 - FREE NO! NO! SMOOTH CREAM Worth £15 - FREE DELUXE TRAVEL CASE Worth £12 ..." respectively, with the amounts in the second box totalling the £76 figure that was referred to. We also noted ICTV Brands UK Ltd's explanation that respondents would be made aware of the total payment amount that was required before they agreed to take up the offer.
However, we considered that, to comply with the Code, consumers needed to be aware of the commitment they would need to make before they took the step to enquire further about an offer. In this case, we noted that respondents were given the options either of paying in full at the outset or in three instalments of approximately £66 each: one when they initially placed their order; the second 30 days later and the third at 60 days. Therefore, while they were not required to make the full payment up front, consumers were, nevertheless, required to make at least part payment before beginning the 60-day trial. We considered it was not sufficient for them to be told about the commitment they needed to make only after they responded to the ad.
Because the ad had not made clear the extent of the commitment consumers needed to make to obtain the advertised price or take advantage of a "free" offer, we concluded that the ad was misleading.
The ad breached CAP Code (Edition 12)
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), 3.17 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) and 3.23 3.23 Marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a "free" offer. (Free).
The ad must not appear again in the form complained of. We told ICTV Brands UK Ltd to ensure that their ads made clear the extent of the commitment consumers needed to make to obtain an advertised price or take advantage of a "free" offer.