Summary of Council decision:
Three issues were investigated, all were Upheld.
Two ads for Kelly's Vegies, a home delivery service for fresh fruit and vegetables, offered a free trial:
a. The front page of a leaflet stated "Free Trial Box offer ... This offer applies to our small box only". On the inside of the leaflet, it stated "Three Box Sizes To Choose From" and featured three boxes: small; medium; and large. The small and medium box included a tag which stated "FREE".
b. Claims on www.kellysvegies.co.uk stated "FREE Trial Box ... Sign Up today for a no obligation free trial box".
The complainant challenged whether:
1. the description of the small and medium box inside ad (a) as “free” was misleading because it contradicted the claim on the front page "Free Trial Box offer. This offer applies only to our small box only";
2. ad (a) was misleading because it failed to include all applicable significant conditions of the free trial box offer; and
3. ad (b) was misleading because it failed to include all applicable significant conditions of the free trial box offer before consumers committed to taking up the offer.
1. Kelly’s Vegies Ltd said that both the first small and medium box were free.
2. Kelly’s Vegies explained that trial customers had to confirm they had read and agreed to Kelly’s Vegies’ terms and conditions before placing their order and submitting payment.
3. Kelly’s Vegies confirmed that trial customers who did not wish to continue with the service once the free trial had ended had to inform them by calling an 0800 number within four days of receipt of their order. They explained that the lines were not manned 24 hours a day, seven days a week and therefore a 24-hour answer phone was available for out-of-office hours. They did not believe there had been a breach; rather it was more than likely to be the fault of the consumer because they had not read any of the instructions or terms of the offer.
The ASA understood from Kelly’s Vegies that both the small and medium box were free, as described on the inside of the leaflet. However, the front page of the ad included a qualification which stated the free trial applied only to the small box. Under the Code, advertisers were free to use a qualification for a headline claim provided it clarified, rather than contradicted that claim. The front page stated that only a small box was available as part of the free trial box offer. However, we considered that claim was contradicted in the inside of the leaflet, which stated small and medium sized boxes were free. We therefore considered ad (a) was ambiguous as to which size box was available under the free trial. Because of that, we concluded the ad was misleading and therefore, it breached the Code.
On this point, ad (a) breached CAP Code (Edition 12) rules
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) 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. (Qualifications).
2 & 3. Upheld
We considered consumers were likely to see the free trial box as a special offer and therefore, we considered it was a sales promotion for the purposes of the Code. As such, we considered both ads needed to include all applicable significant conditions to the offer, the omission of which was likely to mislead consumers. Those conditions were likely to include details on how to participate, which should include information such as significant costs to the participant and other major factors which were likely to affect a consumer’s decision to participate.
No information about the conditions appeared in ad (a) or on the initial page promoting the offer in ad (b). We understood, however, that terms and conditions did apply to the offer. Those conditions were only available via the website which we noted was the only way in which consumers could place their order. Furthermore, we noted that they were presented to consumers via the website just before payment was required. It was a condition to the offer that "free trial" customers had to cancel by using the telephone number given in both ads and that cancellation requests by email would not be actioned. A further condition stated that consumers who did not wish to continue with the service once the free trial had ended were required to cancel within four days of receiving their order; a cancellation period which also included the delivery day.
We therefore considered the omission of that information from the ads was likely to lead consumers to believe that signing up for and taking delivery of the free trial box was the extent of their commitment. However, if consumers did not cancel after receipt of their free box within four days, they were enrolled into a subscription service and that carried a £20 cancellation fee unless they received a further eight deliveries. We therefore considered the consumer’s commitment once the free box had been delivered had not been explained in the ads. Consequently, we considered the description of the box as “free” breached the Code. Additionally, we considered those were also significant conditions which were reasonably likely to influence a consumer’s decision to take up the offer, and the omission of those conditions from the ads was therefore likely to mislead.
Furthermore, the Code required participants to be able to retain conditions or easily access them throughout the promotion. However, they were accessible only when consumers had completed their order, after providing their personal details. We therefore considered presenting them to consumers only at this point meant they were unable to retain or easily access the terms and conditions. For the reasons given above, we concluded ad (a) and (b) breached the Code.
On these points, ad (a) and (b) breached CAP Code (Edition 12) rules
Marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a "free" offer.
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.
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:
How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion (Significant conditions for promotions).
Ads (a) and (b) must not appear again in their current form. We told Kelly’s Vegies Ltd not to call the box “free” unless they made clear that consumers would be enrolled into a paid-for subscription service which might be subject to a cancellation fee, and to ensure that: they did not mislead consumers about the offer by omitting significant conditions in their ads; their full terms and conditions could be retained or were easily accessible throughout the free trial period; and any qualifications to an offer were not contradicted by other text elsewhere in their advertising.