Ad description
An e-mail sent by a pet food supplier, received at 7.02 am on 30 August 2013, stated "WE MISS YOU - Save 50% off your next order* When you spend over £60 enter your unique discount code: [code]". Text in a blue circle stated "24 HOURS ONLY!". Small print at the bottom of the e-mail stated "* Discount will be applied automatically when you spend £60 and enter the code [code] at the checkout ... Offer can be withdrawn or revoked at any time without notice - Offer expires midnight 30/08/2013".
Issue
The complainant, who had attempted to place an order using the promotional code at 4 pm on 30 August and had found that the offer was no longer valid, challenged whether the promotion was conducted fairly.
Response
Kokoba Ltd, t/a MedicAnimal, stated that they had sent the e-mail to lapsed customers who had previously placed orders with their business, in order to reward their loyalty. They said because of the level of the discount on offer the e-mail was sent to a relatively small number of customers and was not made available to the general public. They said the selective nature of the offer was made clear in the wording of the e-mail, which referred to "your unique discount code", offered to "welcome you back" and "limited to one use per customer".
MedicAnimal explained that the offer had been due to expire at midnight on 30 August and they had monitored how the discount was used. Over the course of the day, it had come to their attention that the discount code had been posted on the internet and that orders were being placed by customers other than those who had received the promotional e-mail. They noted that the e-mail described the offer code as being "unique" and limited to one use per customer, but confirmed that the same code was sent to each recipient of the e-mail. They explained that their systems did not allow them to automatically issue unique discount codes to be used only by the intended customer, or to be used only once, although they had plans to adopt such a system in future.
They stated that they had decided at 1:53 pm to withdraw the promotion, at which point the ratio of orders placed using the code by intended recipients versus those placed by customers who had not been sent the e-mail was approximately 2:1. They said that decision was based on an unforeseen level of leakage of the discount code, which had accelerated throughout the day, and on the detriment that would have on their margins. They considered that the circumstances had been beyond their reasonable control, and noted that they had run similar promotions to lapsed customers in the past which had not led to the same problems.
MedicAnimal pointed out that text in the small print of the e-mail stated "Offer can be withdrawn or revoked at any time without notice", although they said they had had no intention or expectation of having to do so. They explained that after the offer was withdrawn their marketing team had been able to change the presentation of the e-mail for those who had not yet opened it, such that the offer would be clearly marked as having expired. They provided details of the level of queries and complaints received around the time of the promotion ‒ although they could not be certain which of those related specifically to the withdrawn offer, they noted that the volume of correspondence and calls was higher than they would generally expect to receive. MedicAnimal provided a copy of the standard response they had sent to customers enquiring about this promotion, which stated: “… that the possibility for the offer to be withdrawn at any time was expressed in the email; that it had been very popular and available for a limited time only; and that they expected to launch similar offers in future which the customer would receive if they had subscribed to MedicAnimal's newsletter”.
Assessment
Upheld
The ASA understood that MedicAnimal had initially intended to run the offer until midnight on 30 August (although the e-mail stated that the code was valid for 24 hours), but had taken the decision to withdraw the offer at 1:53 pm, at the point where approximately a third of orders placed using the discount code were made by customers who were not intended recipients of the promotional e-mail. Although the ad contained small print stating that the offer could be revoked at any time, the CAP Code stipulated that closing dates should not be changed unless circumstances outside the reasonable control of the promoter made it unavoidable. Whilst we acknowledged the potential impact on profit margins of a larger-than-expected take-up of the offer, we considered that the possibility of the discount code being published online and thus being made available to a wider audience than intended was not unforeseeable and that MedicAnimal could reasonably be expected to have made provision for that eventuality before the promotion went live. We noted that the e-mail described the offer code as being unique, when it was not, and limited to one use per customer, when MedicAnimal did not have the facility to implement that condition. We considered that the problems experienced during the promotion would likely have been avoided had MedicAnimal ensured that their systems were capable of administering it in the way described in the e-mail.
Although we did not agree that the publication online of the discount code was unforeseeable before the start of the promotion, we also considered that once the decision to withdraw the offer had been made MedicAnimal could have taken steps to ensure as far as possible that recipients of the e-mail who had not yet placed an order using the discount were not disadvantaged ‒ for example, by issuing them a replacement promotional code. We understood that the presentation of the e-mail had been revised for those who had not yet opened it so that the offer would be shown as having expired. We also noted that customers who had complained directly to MedicAnimal had been advised that the promotion had been very popular and that they would be likely to receive further offers in future. However, we considered that those steps were insufficient to ensure that potential participants had been dealt with fairly and were not unnecessarily disappointed.
In our view the possibility of the promotional code being published online was not unforeseeable, and therefore MedicAnimal should have ensured the promotion was administered in such a way as to be able to deal with that eventuality. We further considered that at the point that they withdrew the offer they should have gone further to ensure that potential participants (those who had received the e-mail, but who had not been able to use the discount code) were dealt with fairly and were not unnecessarily disappointed. On that basis, we concluded that the promotion had breached the Code.
The promotion breached CAP Code (Edition 12) rules 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. (Sales promotions - administration) and 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. .4.e (Sales promotions - significant conditions for promotions).
Action
The promotion must not appear again in its current form. We told Kokoba Ltd to ensure that their promotions were administered in such a way as to avoid foreseeable problems, and to take care to deal fairly with participants and potential participants in order to avoid causing unnecessary disappointment.
