Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A direct mailing from a prize promotion operator included text above the address panel on the envelope that stated "WRITTEN WARNING". To the left of the address panel was a barcode with the words "CASHtrak DISBURSEMENT TRACKING" written vertically alongside. Text underneath the address panel stated "MONEY DUE YOU WILL BE FORFEITED AT MIDNIGHT ON 16 FEBRUARY UNLESS YOU SIGN AND RETURN THE REQUIRED PAPERS BY DEADLINE DATE". In the top left-hand corner of the envelope, text stated "Cash Distributions Processing Dept. Records Locator Centre" and text immediately below stated "Bright-Life UK, P.O. Box 335, Liverpool, L13 1WB".
Text on the back of the envelope stated "MONEY DUE YOU NO FURTHER ATTEMPT TO CONTACT YOU THIS MONTH WILL BE MADE. YOU HAVE UNTIL 16 FEBRUARY TO READ, RESPOND AND PROPERLY CLAIM ALL CASH RIGHTFULLY YOURS." Text in the style of a stamp said "SEALED 6 JANUARY 2012 AM 8:56".
Issue
1. Two recipients of the direct mailing challenged whether the ad was misleading, because it was not obviously identifiable as a marketing communication.
2. One recipient also challenged whether the direct mailing was likely to cause undue fear or distress.
Response
1. & 2. JDM Marketing Ltd t/a Bright-Life UK stated that it was quite clear from the top left-hand corner of the envelope that the mailing was sent by Bright-Life UK. They said the statements on the envelope were true, because failure to respond would mean the recipients would forfeit their right to claim a cash award which was available to them. They said all of the text made clear that recipients must respond by the deadline to claim the money due to them.
Assessment
1. Upheld
The ASA considered that the statement "WRITTEN WARNING", which ran the length of the front of the envelope above the address window, was the most prominent on the envelope. We noted that text below the address window stated "MONEY DUE YOU WILL BE FORFEITED AT MIDNIGHT ON 16 FEBRUARY" and in slightly smaller text "UNLESS YOU SIGN AND RETURN THE REQUIRED PAPERS BY DEADLINE DATE". Furthermore, we noted that the back of the envelope stated that recipients could "PROPERLY CLAIM ALL CASH RIGHTFULLY YOURS".
Although we noted that the name "Bright-Life UK" appeared in the top left-hand corner of the front of the envelope, we noted that the envelope did not state that it was a marketing communication and we considered that the various statements that did appear on the envelope did not make it obviously identifiable as such. We considered recipients were therefore likely to expect the mailing to be of more importance than was the case and we concluded that it was likely to mislead.
The mailing breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. (Recognition of marketing communications) and 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
2. Upheld
As noted above, we considered that the envelope was not obviously identifiable as a marketing communication and that recipients were likely to expect the mailing to be of more importance than it was. We considered that the statement "MONEY DUE YOU WILL BE FORFEITED" was ambiguous and that, whether recipients interpreted this as "money due to you" or "money due by you", the overall impression of the mailing was that they would lose out in an important financial matter about which they had received a "WRITTEN WARNING" unless they "SIGN AND RETURN THE REQUIRED PAPERS BY DEADLINE DATE". Because the mailing was in fact for a prize promotion, we considered that it could cause distress to some recipients without justifiable reason.
The mailing breached CAP Code (Edition 12) rule 4.2 4.2 Marketing communications must not cause fear or distress without justifiable reason; if it can be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention. (Harm and offence).
Action
The mailing must not appear again in its current form. We told JDM Marketing Ltd to ensure that their future mailings were obviously identifiable as marketing communications and to ensure they did not cause distress without justifiable reason.
