Background
Summary of Council decision:
Six issues were investigated of which five were Upheld and one was Not upheld.
Ad description
An eight page direct mailing from Bright-Life UK stated "CONGRATULATIONS [recipient's name] ... Delivery of all documents enclosed in this notification to you is evidence of our intent to award you with a GUARANTEED Gift Cheque drawn from our funds from our Liverpool Bank Account ... you are hereby instructed to follow the Cheque Redemption Guidelines above prior to the Deadline. Timing on this redemption procedure is extremely important. Please note: Your PENDING Cash Disbursement is waiting for you to claim it. GUARANTEED ... Due to the Selection Committee's Cheque Disbursement Guidelines, we cannot disclose the actual amount of your GUARANTEED cash disbursement or post your Liverpool Bank gift cheque in this notification ... Per legal requirements, you can rest assured that upon receipt of your official claim forms as noted above and your catalogue order, your gift cheque will be officially identified and then sent to your verified cheque delivery address. IN ADDITION WE WOULD HIGHLY ENJOY SENDING YOU A LIVERPOOL BANK CHEQUE FOR £25,000.00 - MADE OUT IN YOUR NAME [recipient's name] IF YOU WERE DRAWN AS WINNER IN [a] GRAND PRIZE DRAW. Due to your selection today, no one has a better chance than you to pocket the £25,000.00 Grand Prize from our latest Great U.K. Giveaway ... 2010 DISBURSEMENTS ARE PENDING! THOUSANDS UPON THOUSANDS OF POUNDS IN CASH PRIZES ARE WAITING TO BE CLAIMED BY OVER A THOUSAND WINNERS. £25,000.00 could just be the beginning. You could win again and again! In addition to receiving your GUARANTEED Liverpool Bank Gift Cheque, you could win your share from a BONUS GIVEAWAY POOL OF £2077.58 - AS MUCH AS an additional £609.80! Simply Return the Double Cash Entry (Form CCC) enclosed to qualify to enter and win as much as £609.80 more. To qualify, you must respond within the next ten days. Also, in further addition to receiving your GUARANTEED Liverpool Bank Gift Cheque, you could win a Samsung HD-Ready LCD Flat Screen Television! Simply return the special RED FREE TV Entry (Form DDD). To qualify ... you must respond within the next ten days ... take a few minutes to review Bright-Life UK's 'Winners' Catalogue of Values. It's an impressive collection of some of our most popular items - great items at sensible prices ... Best of all, any purchase will ensure future sweepstakes opportunities. Congratulations once again. Remember, to get the PENDING/GUARANTEED Cash Award Disbursement due you, return all requested documents (FORM AAA through Form DDD) prior to [date]! ... ATTENTION ... All cash awards are guaranteed to be awarded/disbursed. If you neglect to claim your Liverpool Bank Gift Cheque Disbursement within the time allocated by the Disbursement Selection Committee, your cash award will be disbursed to someone else in Region VII. Please do not forfeit your disbursement. Act now".
Form AAA stated "ATTENTION [recipient's name] YOU HAVE JUST BEEN CONFIRMED AS A MONEY DUE CLAIMANT BY THE SELECTION COMMITTEE FOR REGION VII ... SEND IN THIS CLAIM (FORM AAA) FORM AND LIVERPOOL BANK GIFT CHEQUE CLAIMCHEQUE (FORM BBB) WITH MINIMUM CATALOGUE ORDER FOR £12.99 IMMEDIATELY ... CONGRATULATIONS! [recipient's name] YOU ARE BEING SENT THIS OFFICIAL NOTIFICATION BECAUSE YOU ARE A GUARANTEED CASH AWARD RECIPIENT - SEND LIVERPOOL BANK CHEQUE TO THIS CONFIRMED CASH AWARD RECIPIENT: [reference number and recipient's name and address]".
Form BBB stated "... CONGRATULATIONS, [recipient's name] - According To The Selection Committee's Official Notice Dated 08/06/12, You Are Guaranteed To Receive MONEY Now Due You ...". A tick box appeared below for the recipient to confirm their name and address, followed by text which stated "I understand that a minimum purchase of £12.99 is necessary to claim this cash disbursement".
Form CCC stated the recipient's name and "£2,072.58 - ACTIVATE ENTRY ELIGIBILITY IN DRAW FOR SHARE OF: TWO THOUSAND SEVENTY-TWO POUNDS AND FIFTY-EIGHT PENCE".
Form DDD asked recipients to tick all the statements that followed if they applied:
"YES. PLEASE DISBURSE CASH AWARDS I QUALIFY FOR TO MY CHEQUE DELIVERY ADDRESS, AND ENSURE ANY ENTRY INTO ALL DRAWS, UP TO AND INCLUDING THE £25,000 GRAND PRIZE AS STATED. In addition to my GUARANTEED Gift Cheque - withdrawn from monies at your Liverpool Bank - please inform me if I win the £25,000.00 Grand Prize or any of over 1,000 other gifts and prizes offered in the Great UK giveaway. I understand that a minimum purchase of £12.99 is necessary to claim my gift cheque ...".
"YES, YES! Also send me a cheque for my share of the winnings from the DOUBLE CASH GIVEAWAY POOL if I have received and then return the winning DOUBLE CASH GIVEAWAY ENTRY in this notification and return it as explained herein".
"No. I am not ordering. I do not wish to receive my Liverpool Bank Cheque. However, please enter me into the draws and inform me if I win the £25,000.00 Grand Prize or any of over 1,000 other prizes offered in the Great UK Giveaway ...".
Instructions at the side of the page stated "... Place an order for £12.99 from our catalogue on the Cheque Disbursement Reconfirmation Form at left ... There will be one winner of the £25,000.00 Grand Prize who will be selected pursuant to a drawing as per sweepstake rules. A minimum purchase of £12.99 is required to receive Liverpool Bank Cheque designated to be awarded to you. Any purchase amount (above the £12.99 minimum) will have no bearing upon actual value of Liverpool Bank cheque already reserved in your name. NO PURCHASE OR OBLIGATION NECESSARY TO ENTER THE GREAK [sic] UK GIVEAWAY. Purchase is not required and will not affect in any way whatsoever the likelihood of winning a sweepstakes prize. Sweepstakes prizes and purchases have no bearing upon or relation to one another nor affect our predisposition to award or withhold the prize ... The Sweepstakes was created for our active customers to publicise Bright-Life UK's product line. So please consider ordering at least two products from the enclosed catalogue. Thank you!".
Text on the front of the envelope stated "Cheques Claims Centre, Area of Distribution Jurisdiction: United Kingdom, Region VII - Bright-Life UK, P.O. Box 335, Liverpool L13 1WB. Text which stated "CASH IS DUE TO YOU" was stamped across the front.
Text on the reverse of the envelope stated "CONFIDENTIAL - PRIVATE USE ONLY/PRIVILEGED INFORMATION". Small text stated 2012 JDM Marketing Ltd".
Issue
Hertfordshire County Council Trading Standards challenged whether the mailing was misleading because:
1. it implied recipients were luckier than they were;
2. it failed to state the geographical address of the advertiser and implied it was UK-based;
3. it implied the reference number quoted on the mailings was unique to the recipient;
4. the references to "Liverpool Bank" suggested a link with an established financial institution;
5. it failed to make clear the possible amount due was just 31p; and
6. the envelope failed to make clear that it contained marketing material.
Response
1. Bright-Life UK (Bright-Life) believed the mailing set out the opportunity that was available to recipients but did not imply they were more likely to win a prize than was really the case.
2. Bright-Life said their address and geographical location was stated in their product catalogues, which could be retained by recipients. They said a card pack that accompanied the mailing was also intended to state the same but, due to a printer error, had not done so. They undertook to ensure that their address and geographical location was stated in future mailings.
3. Bright-Life said that any reference numbers used in their mailings were unique to the recipient.
4. Bright-Life did not believe references to "Liverpool Bank" suggested a link with an established financial institution. They said the wording referred simply to a cheque being drawn on a bank located in Liverpool.
5. Bright-Life said the rules of the draw stated "an additional £100,000 will be split equally amongst all individuals who make the required minimum purchase and respond in compliance with all instructions, but in no event will you receive less than 31 pence".
6. Bright-Life said the issue that the envelope had not made clear that it contained marketing material would be addressed in future.
Assessment
1. Upheld
The ASA acknowledged that Bright-Life had sought advice from the CAP Copy Advice team after a previous complaint was upheld. In the present case, the mailing was headed "CONGRATULATIONS [recipient's name]". Text went on to state "Delivery of all documents enclosed in this notification to you is evidence of our intent to award you with a GUARANTEED Gift Cheque ... Your PENDING Cash Disbursement is waiting for you to claim it. GUARANTEED ... Due to the Selection Committee's Cheque Disbursement Guidelines, we cannot disclose the actual amount of your GUARANTEED cash disbursement ... IN ADDITION WE WOULD HIGHLY ENJOY SENDING YOU A ... CHEQUE FOR £25,000.00 ... IF YOU WERE DRAWN AS WINNER IN GRAND PRIZE DRAW ... no one has a better chance than you to pocket the £25,000.00 Grand Prize ... THOUSANDS UPON THOUSANDS OF POUNDS IN CASH PRIZES ARE WAITING TO BE CLAIMED BY OVER A THOUSAND WINNERS ... You could win again and again! In addition to receiving your GUARANTEED Liverpool Bank Gift Cheque, you could win your share from a BONUS GIVEAWAY POOL ... AS MUCH AS an additional £609.80! ... Also, in further addition to receiving your GUARANTEED Liverpool Bank Gift Cheque, you could win [a flat screen television] ... Congratulations once again ... Please do not forfeit your disbursement ... YOU ARE BEING SENT THIS OFFICIAL NOTIFICATION BECAUSE YOU ARE A GUARANTEED CASH AWARD ... You Are Guaranteed To Receive MONEY Now Due You ... ACTIVATE ENTRY ELIGIBILITY IN DRAW FOR SHARE OF: TWO THOUSAND SEVENTY-TWO POUNDS AND FIFTY-EIGHT PENCE ... ENSURE ANY ENTRY INTO ALL DRAWS, UP TO AND INCLUDING THE £25,000 GRAND PRIZE AS STATED".
The ASA noted that the mailing referred alternately to gift cheques, which were guaranteed but which were for amounts that appeared to be variable or which were yet to be decided, and the chance to win prizes. Regarding prizes, the rules stated there would be one prize of £25,000; two prizes of £609.80 each; three prizes of £77.70 each; ten prizes of £32.58 each and ten prizes of £29.93 each, and stated "... depend [sic] on the number of entries received which may be in the millions". Bright-Life had also explained that an additional £100,000 would be split between all individuals who made the required minimum purchase and who responded in compliance with instructions, and that they would each receive not less than 31p. We considered the alternating references to guaranteed gift cheques and the chance to win prizes, which could potentially be for as much as £25,000 but which depended on the number of entries received, suggested to recipients that there was a greater chance for them to be awarded a larger amount than was actually the case because the number and value of prizes and guaranteed gift cheques in relation to the number of respondents made the award of a large amount unlikely. Because of that, we considered the mailing suggested recipients were luckier than they were and concluded that it was misleading.
On this point the mailing breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.2
3.2
Obvious exaggerations ("puffery") and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead.
(Misleading advertising),
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),
8.2
8.2
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
(Sales promotions),
8.17.6
8.17.6
Prizes and gifts
Promoters must specify the number and nature of prizes or gifts, if applicable. If the exact number cannot be predetermined, a reasonable estimate of the number and a statement of their nature must be made. Promoters must:
(Prizes and gifts) and
8.19
8.19
Promoters must not claim that consumers have won a prize if they have not. The distinction between prizes and gifts, or equivalent benefits, must always be clear. Ordinarily, consumers may expect an item offered to a significant proportion of participants to be described as a ‘gift’, while an item offered to a small minority may be more likely to be described as a ‘prize’. If a promotion offers a gift to a significant proportion and a prize to a minority, special care is needed to avoid confusing the two: the promotion must, for example, state clearly that consumers “qualify” for the gift but have merely an opportunity to win the prize. If a promotion includes, in a list of prizes, a gift for which consumers have qualified, the promoter must distinguish clearly between the two.
8.21
8.21
Promoters must not claim or imply that consumers are luckier than they are. They must not use terms such as "finalist" or "final stage" in a way that implies that consumers have progressed, by chance or skill, to an advanced stage of a promotion if they have not.
and
8.23
8.23
Promoters must avoid rules that are too complex to be understood and they must only exceptionally supplement or amend conditions of entry with extra rules. In such circumstances, promoters must tell participants how to obtain the supplemental or amended rules and they must contain nothing that could reasonably have influenced consumers against buying or participating.
(Prize promotions).
2. Upheld
We welcomed Bright-Life's undertaking to ensure their address and geographical location was stated in future mailings. Because it had not been in this case, we concluded that the mailing was misleading.
On this point the mailing breached CAP Code (Edition 12) rule 9.1 (Distance selling).
3. Not upheld
A reference number appeared above the recipient's name and address inside the mailing. Notwithstanding the concerns we express in relation to the points of complaint that have been upheld, we considered it was not unreasonable, for the purpose of maintaining a database, for instance, for the names and addresses of individual recipients to correspond to unique reference numbers, and for personalised mailings to contain those numbers. We considered that, in the context in which it appeared in this ad, the reference number did not suggest that it was linked to the likelihood of the recipient winning. Because of that, we concluded that the mailing was not misleading.
On this point we investigated the mailing under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales promotion rules) but did not find it in breach.
4. Upheld
We considered that the repeated references and presentation of wording such as "Liverpool Bank Account"; "Liverpool Bank Gift Cheque" and "Liverpool Bank Gift Cheque Claiming Deadline" suggested that Bright-Life was referring to an established financial institution named Liverpool Bank with which they had a business relationship, rather than that they simply banked with a branch of a bank that was located in Liverpool. We considered that the overall impression was that there was a stronger link with an established financial institution - resulting in the increased reassurance to recipients that would come with that - than would be the case with a company which simply banked with a branch located in Liverpool. Because of that, we concluded that the mailing was misleading.
On this point the mailing breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.2 3.2 Obvious exaggerations ("puffery") and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead. (Misleading advertising), 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) and 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales promotions).
5. Upheld
The mailing stated "For an estimate of what you will receive see Rule 5b". Rule 5b was in a separate document contained in the same envelope. While the mailing envelope did, therefore, contain the information that the minimum respondents would receive was 31p, we considered the references in the body copy of the mailing to £25,000, £2,077.58 and £609.80 were considerably more prominent. Because of that, we considered the mailing failed to make it sufficiently clear that the possible amount of an award could be as little as 31p and concluded that the mailing was misleading.
On this point the mailing breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising),
8.2
8.2
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
(Sales promotions) and
8.17.6
8.17.6
Prizes and gifts
Promoters must specify the number and nature of prizes or gifts, if applicable. If the exact number cannot be predetermined, a reasonable estimate of the number and a statement of their nature must be made. Promoters must:
(Prizes and gifts) and
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).
6. Upheld
We saw that the top of the front of the envelope stated "Cheques Claims Centre" followed by Bright-Life's Liverpool address; that text that stated "CASH IS DUE TO YOU" was stamped across the front; that text next to a barcode at the bottom stated "DISBURSEMENT TRACKING CODE;" that the reverse of the envelope stated "CONFIDENTIAL - PRIVATE USE ONLY/PRIVILEGED INFORMATION" and that small text at the bottom stated "(c) 2012 JDM Marketing Ltd". The envelope did not state that it contained marketing material and we considered the various statements that did appear on the envelope did not make it obviously identifiable as such. We welcomed Bright-Life's assurance that the issue that the envelope had not made clear that it contained marketing material would be addressed in future. However, because in this case it had not, we concluded that the mailing was misleading.
On this point the mailing 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 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales promotions).
Action
The mailing must not be used again in its current form.
CAP Code (Edition 12)
3.1 3.2 3.7 3.9 8.17.6 8.19 8.2 8.21 8.23 9.1
