Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Three direct mailings for Bright-Life UK.
a. The first ad, which was received in February 2015, was contained in an envelope that stated "MONEY DUE" and then "GIFT CHEQUE DUE TO YOU WILL BE FORFEITED IN 14 DAYS THE REQUIRED PAPERS WITHIN THE FILING PERIOD". The top of the envelope featured a crest with a crown and a sword, and text at the bottom of the envelope stated "MARKETING COMMUNICATION".
One enclosure was headed "WRITTEN WARNING" then stated "regarding your CASH AWARD CLAIM" and explained that unless specific documents were returned the claim would be forfeited. A further enclosure comprised a form that stated "WARNING! DO NOT THROW AWAY THIS FORM UNDER PENALTY OF FULL FORFEITURE" and explained that a minimum purchase of £12.99 was required to claim the cash award.
Another enclosure was a letter headed "A Cash Award has been reserved in your name. THE MONEY IS YOURS AND AVAILABLE TO BE CLAIMED MONEY DUE TO YOU WILL BE FORFEITED AT MIDNIGHT IN 14 DAYS" that reiterated which documents should be filled out and referred to a minimum purchase of £12.99. At the bottom of this letter was a tear-off 'acknowledgement card' that stated "CONGRATULATIONS. MONEY IS DUE TO YOU" and referred to the claim deadline.
The final enclosure was an envelope that stated "THIS ENVELOPE IS TO BE USED ONLY IF YOU HAVE REQUESTED SELECTIONS FROM THE WINNERS' CATALOGUE ... IF YOU ARE NOT ORDERING AT THIS TIME, DO NOT USE THIS ENVELOPE. DOING SO WILL DISQUALIFY YOU FOR ANY PRIZES WON".
b. The second ad, which was received in March 2015, was enclosed in an envelope that stated "PAYMENT DUE NOTICE ... HOLDING PAYMENT. AWAITING SIGNATURE". Above the address visible through the envelope's window, further text stated "PAYMENT DUE TO THE ORDER OF".
Enclosed was a letter headed "PAYMENT PROCESSING CENTRE PAYMENT DUE NOTICE CASH PAYMENT DUE TO YOU YOUR SIGNATURE IS REQUIRED ON THE CASH PAYMENT VOUCHER BELOW WITHIN THE NEXT 14 DAYS," below which was the statement and address that had been visible through the envelope. The letter explained that the recipient was eligible for an undisclosed sum and that a minimum catalogue order of £12.99 needed to be made to claim it. It also gave details of further prize draws. A postscript stated "Do not forfeit your promised payment. Do not miss the deadline. If you do, your Payment Voucher will become worthless and the cash amount designated in your name will be forfeited. No exceptions. No extensions".
At the bottom of the letter was a tear-off section that stated "PAYMENT IS DUE TO YOU" and referred to the claim deadline.
c. The third ad included a letter that stated "MONEY IS DUE TO YOU" and made several references to a "gift cheque" being available to the recipient. The letter explained that the recipient was eligible for an undisclosed sum and that a minimum catalogue order of £12.99 needed to be made within 14 days to claim it. It also gave details of further prize draws.
The ASA received three complaints:
1. two complainants challenged whether ads (a) and (b) were likely to cause fear or distress without justifiable reason;
2. one complainant challenged whether ad (a) was misleading because it implied that the recipient had won a large amount of money; and
3. one complainant challenged whether the claims in ad (c) that money was due to recipients and would be awarded if a qualifying order was placed were misleading and could be substantiated.
1. JDM Marketing Ltd t/a Bright-Life UK stated that they had previously removed the phrase 'written warning' from their envelopes to make it clear to recipients that it was a marketing communication, and said that they would agree to stop using the phrase in future promotions. They believed that the words on the envelopes of ads (a) and (b) did not breach the Code because the envelope was clearly marked as a marketing communication.
2. Bright-Life stated that the mailing was not misleading because the recipient would obtain a cash award and would be put forward for a prize draw with various prizes available. They stated that the first page within ad (a) stated "… for an estimate of what you will receive see Rule 5B", which they said explained that £100,000 would be split equally between all eligible respondents, but that no respondent would receive less than 31p. They said that the mailing stated that recipients would also be entered into a prize draw, for which prizes of between £1 and £25,000. Bright-Life stated that they were aware of the need to use 'gift' when monies were guaranteed to eligible recipients (such as those completing minimum orders and returning forms) and 'prize' when an element of chance was required. They said that the use of 'prize' and 'gift' in the mailing was in accordance with their ordinary meanings and the relevant CAP Code rules, and said that they had sought CAP Copy Advice on this point.
3. Bright-Life stated that they paid recipients of their mailing who were entitled to gift cheques. They noted that the complainant was owed three gift amounts from January, February and June, and provided details of a cheque sent in July covering the combined gift amount. They stated that they periodically paid the gift cheques and that they believed the complaint had been made in the period between payments.
With regard to the time frame in which the cheque was sent to recipients, Bright-Life stated that at the commencement of the mailing period, and even at the current time, it would not be possible to say when the 243,902 qualifying orders resulting in the minimum payout for this promotion of 41p would be received. They said that from 1 January 2014 until the beginning of September there had only been 212,368 eligible orders. They stated that each purchaser had been, or would be, sent a cheque for 41p. Bright-Life stated that they provided these cheques periodically throughout the year, although not obliged to do so, as they anticipated receiving qualifying orders in excess of 243,902. They said that they were currently on track to receive 256,686. The alternative, they said, would be to wait until all 243,902 qualifying orders had been placed (the trigger point at which the minimum amount would be creditable to respondents) and that would probably be in November 2015. As such, the respondents would then have far longer to wait than currently. If the number of respondents was fewer than 243,902, then Bright-Life stated they would be out of pocket, as they would need to send out 'top up' cheques to those who had already received 41p cheques.
The ASA noted that the envelopes of ads (a) and (b) contained the phrases "MONEY DUE" and "PAYMENT DUE" which, due to their size and location, we considered were the most prominent claims on the envelopes. We considered that recipients would understand these claims as statements that money was due from them (rather than from the advertiser as part of the promotion) and were therefore likely to be alarmed by them. We considered that the presence of the crown logo contributed to the implication that the mailing was an official request for payment. We noted that the address box of ad (a) featured text referring to a gift cheque being forfeited without a response in 14 days, but considered that not all recipients would link the "MONEY DUE" statement to the awarding of a gift cheque. Ad (a) also contained the statement "MARKETING COMMUNICATION" underneath the address box, but it was of a relatively small size and located away from and under the other text on the envelope. We therefore considered that it was insufficiently prominent to make the commercial intent of the ad clear or negate the potential for distress caused by the headline claim on the envelope.
We noted that the contents of ad (a) contained several references to a "written warning" and to forfeiture of funds, alongside references to how the gift cheques could be claimed and the prize draw entered and statements such as "money due to you". Several of the references to a warning or forfeiture were prominently featured on the documents, such as in bold type, capital letters or as headings. We considered that upon close inspection of all the documents enclosed in the mailing recipients would understand that they referred to a sales promotion, but that this would not be the first impression. We considered that the initial implication of the documents was of an official request for payment due with a strict time limit, and that this was likely to cause undue distress to some recipients. We therefore concluded that the ads breached the Code.
On this point, ads (a) and (b) breached CAP Code (Edition 12) rules 2.1 (Recognition of marketing communications) and 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).
The main letter enclosed in ad (a) referred to a 'cash award', which we understood to be a gift rather than a prize, and that the amount could not be disclosed because of Bright-Life's own policies. Recipients were instructed to look at rule 5b for an estimate of their award, and we understood that this explained the mechanism by which the gift was calculated and the minimum gift that would be awarded. We noted that the only amount mentioned on the first page of the main letter was within the statement "Complete ... your £2,072.58 Double Cash Entry ... and your completed 1-Year Money Back Request Form" as part of the entry instructions. Consumers were therefore likely to understand that this was related to the amount they would receive as a gift. While we understood the mailing contained the information that the minimum respondents would receive was 31p, we understood that the mechanic of the promotion was for Bright-Life to anticipate that there would eventually be the number of respondents required to pay out the minimum and therefore only provide this minimum, rather than to divide the pool by the number of qualifying orders received by a particular date. We therefore understood that recipients were therefore likely to only ever receive the minimum gift value. We considered that the rule quoted by Bright-Life implied that the gift could be more than the minimum value of 31p, as it would depend on the number of respondents, and that this therefore mislead consumers as to the likely value of their gift cheque.
Notwithstanding the above, we also considered the references in the body copy of the letter to £2,072.58 and in other elements of the mailing to £25,000 and £135,000, were considerably more prominent than to the minimum gift value of 31p. Because of that, we considered that the mailing failed to make sufficiently clear that the likely amount of an award was as little as 31p, and that the more prominently-featured larger amounts were the potential prizes from a separate promotion.
The order form enclosed required entrants to tick a box stating that they would accept all money to which they were entitled, including "the £25,000.00 Grand Prize or any of over 1,000 other prizes worth £135,000.00 offered in the 2015 Great UK Giveaway" and that they understood a £12.99 minimum order was required to obtain the cash award. We considered that this section in particular conflated the gift and prize elements of the promotion and blurred the distinction between the amounts that would be received. We considered that the mailing as a whole did not make clear what respondents could expect to receive as a gift and what amounts were solely for winners of an additional set of prize draws, and that the mailing was therefore misleading.
On this point ad (a) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. 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) 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. and 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. (Prize promotions).
We understood that the complainant had submitted several qualifying responses to similar mailings and reported non-receipt of the cash awards, and that on these grounds they doubted the claims that respondents would receive a cash sum. We noted that following notification of the complaint Bright-Life had provided cash awards to the complainant, but that two of these sums had been awarded as a result of orders made several months previously. Ad (c) did not contain information about when the gift cheque would be sent to respondents, and we considered that, in the absence of information regarding when the awards would be made, consumers would reasonably expect them to arrive within a timeframe significantly shorter than six months.
We noted Bright-Life’s statement that if they were to wait until 243,902 responses had been received, consumers would have to wait much longer than six months for their gifts. We acknowledged that cheques were therefore sent out periodically, but considered that consumers would understand from the communication (which referred to returning the mailing within 14 days and the prize being shared between an unknown number of respondents) that there was a time limit on response and that the pool would be shared between eligible orders received by this time limit, leading to gifts being received reasonably promptly. We did not consider that consumers would be aware that the money to be received was dependent on Bright-Life anticipating receipt of at least the number of orders that entailed the minimum gift value being provided, and that the promotion was therefore run over a significantly longer timeframe than the fortnight referred to in the mailing. We understood from Bright-Life that the current promotion had been running since January 2014, but considered that consumers would not understand from the mailing that it was part of a long-running scheme and that there would be a considerable wait for their gift. We considered that the absence of this information was therefore disadvantageous to consumers and implied that a swift response was required to take part in the long-running promotion.
Notwithstanding the above, we also noted that Bright-Life had not demonstrated that other eligible respondents had also received their monies. In light of the above, we concluded that the claims relating to receipt of gift cheques for eligible orders were misleading.
Investigated under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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), 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. 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), 8.14 8.14 Promoters must ensure that their promotions are conducted under proper supervision and make adequate resources available to administer them. Promoters, agencies and intermediaries should not give consumers justifiable grounds for complaint. (Administration), 8.17 8.17 All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include: and 8.17.4.c 8.17.4.c Promoters must be able to demonstrate that the absence of a closing date will not disadvantage consumers (Significant conditions for promotions), and 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. 8.21.1 8.21.1 Promoters must not falsely claim or imply that the consumer has already won, will win or will on doing a particular act win a prize (or other equivalent benefit) if the consumer must incur a cost to claim the prize (or other equivalent benefit) or if the prize (or other equivalent benefit) does not exist. and 8.22 8.22 Promoters must not claim that consumers must respond by a specified date or within a specified time if they need not. (Prize promotions).
The ads must not appear again in their current form. We told JDM Marketing Ltd not to use the phrases "PAYMENT DUE" and "MONEY DUE" in their current manner on the envelopes and to ensure that the initial implication of the documents were not of an official request for payment, including through prominent use of the phrase "written warning". We also told them to ensure that future ads clearly distinguished between gifts and prizes, made sufficiently clear the potential amount of an award, and that gifts were awarded to eligible respondents and in a timely manner.