Summary of Council decision:
Two issues were investigated and both were Upheld.
A direct mailing was headed "You can have a penis that's inches longer and much thicker naturally, without surgery, pumps or exercise. Guaranteed or your money back!" Text below stated "Dear XXXXX Is the size of your penis a disappointment to you and your partner? Sexually, do you feel so inadequate that the inability to satisfy your partner leaves you demoralised and depressed at how little you have to offer? Your lack of confidence and low self esteem is making you unattractive to others. Any partner you have is simply turned off by your small size and the chances of attracting anyone else are zero - you're just too scared to reveal what little you have. It's a vicious circle". The mailing continued in a similar vein for four pages while making various claims for the efficacy of Maximus penis enlargement capsules.
1. The complainant, who had previously asked the advertiser not to contact him but still received such mailings on a monthly basis, challenged whether the marketer was in breach of the Code for making persistent and unwanted marketing communications.
2. The complainant also challenged whether the ad was offensive.
Life Healthcare did not respond to the complaint.
The ASA was concerned by Life Healthcare's lack of response and apparent disregard for the Code which was a breach of CAP Code (Edition 12) rule 1.3 (Unreasonable delay). We reminded them of their obligation to respond promptly to our enquiries and told them to do so in future.
The CAP Code stated that marketers must not make persistent and unwanted marketing communications and that they must do everything reasonable to ensure that marketing communications were not sent to those who had asked not to receive them. We understood that the complainant had received ads from the advertiser on a regular basis and had contacted them on a number of occasions to request that they be stopped, but had not been successful. The advertiser had also not responded to our request to suppress the complainant's data.
We therefore concluded that Life Healthcare had made persistent and unwanted marketing communications and were in breach of the Code.
On this point the advertiser breached CAP Code (Edition 12) rules 10.4 10.4 Marketers must not make persistent and unwanted marketing communications by telephone, fax, mail, e-mail or other remote media. To avoid making persistent and unwanted marketing communications, marketers must do everything reasonable to ensure that: and 10.5 10.5 Consumers are entitled to have their personal information suppressed. Marketers must ensure that, before use, databases have been run against relevant suppression files within a suitable period. Marketers must hold limited information, for suppression purposes only, to ensure that no other marketing communications are sent as a result of information about those consumers being re-obtained through a third party. (Database practice).
We noted that the complainant had not requested the mailing and that it began by suggesting that the recipient's penis size might be "a disappointment", that they might feel "inadequate" and that their partner might be "turned off" by them, before going on to make repeated references to how their penis size and sexual performance could be improved with the advertised product. We considered that the personal nature of the suggestions about the recipient, particularly when coupled with the more general graphic and sexually explicit sexual references, were likely to cause serious offence and concluded that the ad breached the Code.
On this point the ad breached CAP Code (Edition 12) rule
Marketing communications must not contain anything that is likely to cause serious or widespread offence. Particular care must be taken to avoid causing offence on the grounds of race, religion, gender, sexual orientation, disability or age. Compliance will be judged on the context, medium, audience, product and prevailing standards.
Marketing communications may be distasteful without necessarily breaching this rule. Marketers are urged to consider public sensitivities before using potentially offensive material.
The fact that a product is offensive to some people is not grounds for finding a marketing communication in breach of the Code. (Harm and offence).
The ad must not appear again in its current form.
We told Life Healthcare to suppress the complainant's personal data.
We asked CAP to inform its members about the problem with Life Healthcare.