Ad description
A website, www.arganliquidgold.com, for a beauty product, was headed "Essence of Argan 100% PURE MOROCCAN Argan Oil Nature's Answer to Botox". A form at the top-right of the ad, which was headed "TELL US WHERE TO SEND YOUR TRIAL BOTTLE", included boxes for website users to enter their contact details. Text on a button at the bottom of the form stated "ORDER NOW!". Text next to the button stated "ACT NOW! CLAIM THIS TRIAL OFFER! HURRY! ONLY WHILE SUPPLIES LAST, TRIALS ARE VERY LIMITED". The long web page included images and information about the product; at various places additional "ORDER NOW!" buttons linked back to the form at the top of the page.
Clicking on a link at the bottom of the web page, titled "Terms and Conditions", brought up a box which included the text "Claim your sample supply of Essence Of Argan today. Just pay $5.99 for S&H. You have 15 days to try the product ... If you enjoy the product, do nothing - you'll be billed the low, low price of just $83.80 (+ $5.99 S&H) in USD (or GBP for customers in the UK and IR) at the end of your trial period and sent a full month's supply of Essence of Argan. If for any reason you decide that Essence Of Argan is not the perfect ... treatment, call us toll-free at 1-(866 )-881-1391 any time during your 15-day trial period to cancel your trial - then simply return the sample product (even if it is empty!) and you will NEVER be billed, or simply call for RMA instructions. Plus, if you decide to keep Essence Of Argan, you will receive FREE acceptance in our Liquid Gold Auto Ship Rewards Program, and you'll receive a new supply of Essence Of Argan every 30 days at the same low Liquid Gold Rewards price of $83.80 (+ $5.99 S&H) in USD (or GBP for customers in the UK and IR). By entering my account information and clicking the submit button, I agree to the trial offer terms and authorize Essence Of Argan to charge my account at the end of the 15-day trial, and with each monthly shipment, on the terms described above".
Issue
The complainant challenged whether the ad was misleading, because it was not clear that consumers who requested a trial bottle would be automatically enrolled into an ongoing monthly supply of the product if they did not cancel within 15 days.
Response
LifeStyle Advantage said their legal department had approved the creative for the ad years ago and they were unaware that anyone was able to see the website. They said they had taken the website down.
Assessment
Upheld
The ASA welcomed LifeStyle Advantage's action in taking the website down but were concerned that LifeStyle Advantage had not commented specifically on the issue raised by the complainant.
We considered the prominent claims such as "SAMPLES GIVEN AWAY 1000/ PER DAY", "TRIAL BOTTLE", "CLAIM THIS TRIAL OFFER!", "HURRY! ONLY WHILE SUPPLIES LAST, TRIALS ARE VERY LIMITED!" and "GET YOUR SAMPLE OF ESSENCE OF ARGAN..." would be understood by consumers to mean that they were signing up only to receive a trial bottle of the product, for which they would not be charged. We noted that the terms and conditions pop-up box included information with regard to the charges that would be incurred if consumers did not cancel and return the product within 15 days; we considered that information constituted significant conditions and costs which were reasonably likely to influence consumers' decisions and understanding about the promotion and which therefore must be presented clearly to consumers. However, we considered that because the pop-up box was only accessible through linked text in small print which appeared at the bottom of the long web page, the information had not been presented clearly. We considered that all references to 'samples', 'trials' and 'trial offers' should have been immediately followed by qualifying text which made clear that charges would be incurred if consumers did not cancel within 15 days. We concluded the promotion was misleading.
The ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification) and
8.17.1
8.17.1
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).
Action
The ad must not appear again in its current form. We told LifeStyle Advantage to ensure significant terms and conditions were clearly stated in their promotions.
